And here I am, a queer identified person, yet still something of an outsider, having never had to feel the full brunt of homophobia, arguing in defense of the court's ruling. I do this apprehensively, but I do it because I feel that much of the outrage, much of the sense of betrayal, much of the sense of being abandoned by the court largely stems from massive public ignorance about the institution of the courts and ignorance of the legal principles involved in the court's ruling.
Ultimately, the issue I want to address seems to be an ignorance of the difference between courts and legislatures. It has been said many times--and still it is worth repeating--that the courts don't make the law, they interpret the law. The vast majority of cases before courts are not about issues of the constitutionality of some provision but are a matter of how and whether to apply some statue to the specifics of real life situations. But in some cases--including many high-profile cases--the issue is a matter of law conflicting with law. If one law conflicts with a higher law (i.e. the Constitution or a treaty, though usually the former), the subordinate law can be made void. In such cases, the question generally becomes whether a laws violates the Constitution (federal for federal laws, or federal or state for state laws.) The role of the courts is not to decide if some law is a good law, if some statue is a wise statue, or if some executive decision is a prudent decision. Questions of prudence and wisdom are left to legislatures, to members of the executive branch, and to the people. If you think some law is a bad law, there are constitutional provision for remedying this: fight the law, try to get it repealed by the legislature, vote people out of office. The role of the courts is the much narrower: they decide on the basis technical legal questions. The California Supreme Court emphasized very early in their decision the role of the Court:
Our task in the present proceeding is not to determine whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution. Regardless of our views as individuals on this question of policy, we recognize as judges and as a court our responsibility to confine our consideration to a determination of the constitutional validity and legal effect of the measure in question. It bears emphasis in this regard that our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values. (p.3)
The court's opinion, concurring opinions, and a dissent are available online. It's a long document (about 185 pages); I've read about 120 pages of it, and skimmed much of the rest. (For the key parts, pp.1-13 summarize the majority opinion, and pp.43-109 cover the primary legal question involved. pp. 151-175 is Justice Moreno's concurring opinion and dissent.)
To start with, a very brief recounting of the facts: Last year the California Supreme Court ruled unconstitutional a statue that limited marriage to opposite-sex couples; it declared it unconstitutional on the basis of the California Constitution's right to privacy (article 1, section 1), due process clause (article 1, section 7), and equal protection clause (article 1, section 7). (Following the court, I'll call these the Marriage Cases.) In the state of California, it is much easier to pass a constitutional amendment than in most places. There is a provision allowing for initiative measures to be passed, bypassing the legislature.
An initiative measure may be proposed by presenting to the Secretary of State a petition that sets forth the text of the proposed statute or amendment to the Constitution and is certified to have been signed by electors equal in number to 5 percent in the case of a statute, and 8 percent in the case of an amendment to the Constitution, of the votes for all candidates for Governor at the last gubernatorial election. (Article 2, section 8, b)Using this, a constitutional amendment was passed with wording identical the section of the law overturned in the Marriage Cases. This amendment was proposition 8.
The key issue in this case has to do with a distinction made in California law between a constitutional amendment and a constitutional revision. The initiative measure only permits constitutional amendments, but not constitutional revisions. Consequently, if prop 8 constituted a constitutional revision, it would be unconstitutional. Before going further into the legal questions, I want to explain my main reason for supporting the court's decision: I believe that if the court would have overturned prop 8, it would have been a serious affront to the entire constitutional order.
I know that this sounds drastic, perhaps extreme, yet a fundamental part of our constitutional democracy is separation of powers and having in place a system of checks and balances. No branch of government has absolute power, and no branch of government has powers not subject to review, either by another branch or by the electorate. However, the decisions of supreme courts, in most places, are among the governmental decisions most insulated from review. This is appropriate given the role of the courts as arbiters of the law, not creators of it (despite what some conservatives might say about judges "legislating from the bench.") If a court makes an unpopular decision, there are a few possible recourses. One is to remove or replace justices--the extent to which this applies depends on the court. The US Supreme Court gives life tenure, and the power to impeach justices has only been used once. (Samuel Chase in 1804, but he wasn't removed from office.) That proved such a disaster, it has served as a warning ever since not to be repeated. In state courts, the laws vary and it is often easier to remove justices. In California, justices are up for review every 12 years, and it is possible to recall them (I found a state senator's site saying that judges have never been recalled but some have failed to pass the 12 year review.)
However, the primary recourse available is to overturn a controversial court decision via constitutional amendment. This is precisely what happened in this case--in large part because it's a lot easier to amend the California Constitution than the US Constitution or even most state constitutions. For the court to make a ruling, have that ruling overturned by a constitutional amendment, and then to overturn that amendment would have amounted to them up and nullifying the primary check on their power that exists. I would find that a very troubling situation no matter how much I may personally agree with the result in that particular case. I think this is one of the primary reasons why the decision to legalize same-sex marriage was 4-3, but the decision to uphold prop 8 was 6-1. It wasn't at all a reversal of their opinions, but deciding on a quite different legal matter.
Back to the case. There were three main legal questions involved.
(1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? [citation] (2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution? (3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8? (footnote 4, p. 23)The last two were fairly easy questions. For the third, the answer is a resounding "no effect; those marriage remain valid." Nothing in the text of prop 8 indicated that it functioned retroactively. Therefore it didn't function retroactively. Therefore those marriages remain valid. For the second question, this challenge to prop 8 doesn't really even make sense. The argument seemed to be that to use a constitutional amendment to overturn a court decision amounts to "rejudicating" the court's power. But using a constitutional amendment to overturn court decisions is well-grounded in precedent having been done a number of times.
All this leaves the main question of whether this constitutes an "amendment" or a "revision". Pages 46-84 give an extensive history of the topic, discussion of the case-law, and application to this case. I'll try to summarize it here.
In the 1849 version of California's constitution, after explaining the process for creating amendments, it explains revisions, a concept borrowed from other state constitutions:
And if, at any time two-thirds of the Senate and Assembly shall think it necessary to revise and change this entire Constitution, they shall recommend to the electors, at the next election for members of the Legislature, to vote for or against the convention (p.48)Constitutional revisions were massive overhauls that required a constitutional convention. (The language of "entire constitution" is no longer present.) In 1878-9, there was a constitutional convention to revise the constitution. The first case in which an amendment was challenged on the claim that it was a revision rather than an amendment was in 1894. An amendment had been proposed to move the state capital. The court rejected the argument that this was a revision, and affirmed that it was a valid amendment.
In 1911, the initiative power was added to the state constitution. Following this, the next important case, and one of only two times the Court was rejected a proposition on the basis it was a revision rather than an amendment, was in 1948 when an initiative was rejected for being a revision. The "ham and eggs" initiative--given that name because of the vast array of topics it addressed--had 12 section, 208 subsections, and constituted more than 21,000 words. At that time, the entirely of the California Constitution was about 55,000 words. (In response to this, an amendment was passed saying that amendments could only be about a single subject.)
In 1956, an advisory committee was formed to address the question of how to accomplish constitutional revisions without a constitutional convention. The result of that committee's study (of other states' processes) was a constitutional amendment that permits the legislature to submit to the electorate both amendments and revisions. The Legislative Counsel's description was as follows:
Under existing provisions the Legislature can only propose ‘amendments,’ that is measures which propose changes specific and limited in nature. ‘Revisions,’ i.e., proposals which involve broad changes in all or a substantial part of the Constitution, can presently be proposed only by convening a constitutional convention. (p.63). An amendment making this changed was approved by the voters in 1962.
Since then, there have been eight cases (including the one against prop 8) brought before the Court claiming that some proposition was unconstitutional because it amounted to a revision rather than an amendment. In only one of these was anything declared unconstitutional because it amounted to a revision rather than an amendment, and in that case only part of a proposition was overturned. The first case (1978) dealt with an amendment making very substantial changes to how taxation was done. The court ruled it was an amendment, not a revision. The second dealt with the death penalty. In 1972, the California Supreme Court ruled that the death penalty was unconstitutional because it violated the state constitution's "cruel and unusual punishment" clause. An amendment was passed voiding that decision by saying that all death penalty laws before the 1972 decision became valid again and that the "cruel and unusual punishment" clause does not prohibit the death penalty. (Note that like the prop 8 case, this was an amendment passed with the sole purpose of overturning a decision of the California Supreme Court). The Court ruled that this was an amendment, not a revision. In 1982, there was a case regarding an amendment changing a number of provisions regarding criminal justice and criminal proceedings, reversing multiple decisions of the Court. They rejected an argument that this violated the single-subject rule, and they rejected a claim that it was a revision. (Incidentally, this also involved a proposition 8.)
Accordingly, finding that “nothing contained in [the 1982] Proposition 8 necessarily or inevitably will alter the basic governmental framework set forth in our Constitution” [citation], the court in Brosnahan concluded that the measure constituted an amendment to, and not a revision of, the California Constitution.In a 1985 case regarding the same amendment--only this time focusing on it's effect on the state's exclusionary rule--they found roughly the same thing. It was an amendment, not a revision. The next case addressing the amendment/revision dichotomy was the only one in which something other than the "ham and egss" initiative was declared a revision and thus void. That case (Raven v. Deukmejian) dealt with proposition 115 from 1990. Like the 1982 Proposition 8, it dealt with rights of criminals and rights of the accused. The preamble summarizes that law:
“we the people . . . find that it is necessary to reform the law as developed in numerous California Supreme Court decisions and as set forth in the statutes of this state. These decisions and statutes have unnecessarily expanded the rights of accused criminals far beyond that which is required by the United States Constitution, thereby unnecessarily adding to the costs of criminal cases, and diverting the judicial process from its function as a quest for truth. (p. 75)The amendment did a number of things. The one part that was rejected on the grounds it constituted a revision
amended article I, section 24 of the California Constitution to provide that numerous state constitutional provisions granting rights to criminal defendants shall not be construed to afford greater rights than those afforded by analogous provisions of the United States Constitution (p. 75). An issue that I haven't addressed so far is that in the third case mentioned--based on the court's reading of the first two cases--they developed a two prong test for establishing if something is a revision. One is quantitative (how much does it change) and the other is qualitative (how profound and far reaching is a change.) A proposition can be regarded as a revision on either of these. The court decided that the section under review was not a revision under the quantitative prong. However, they decided that it was a revision under the qualitative prong. The example (given in the Ham and Eggs case) is that if all judicial power were given to the legislature, that would be so profound a change as to constitute a constitutional revision (this is just a hypothetical). The court found that under such a test, the one section of proposition 115 was a revision.
Proposition 115 contemplates a similar qualitative change. In essence and practical effect, new article I, section 24, would vest all judicial interpretive power, as to fundamental criminal defense rights, in the United States Supreme Court. From a qualitative standpoint, the effect of Proposition 115 is devastating. (p. 79)Moreover, it would, they held, cause the California constitution, as regards criminal matters, have no independent effect. State constitutions frequently have provisions highly similar to ones in the US Constitution; this does not make those provisions redundant. Rather, they are subject to independent interpretation, giving the states the power to interpret those rights more broadly, granting greater liberties to its citizens than is mandated by the US Constitution.
In 1991, a challenge arose that an amendment should be nullified because it was really a revision. The purpose of this amendment was to "(1) adopt term limits, (2) restrict retirement benefits for state legislators, and (3) limit expenditures for legislative staff and support services." (p. 81) The California Supreme Court rejected this argument, holding that that proposition was an amendment, not a revision. The last case covered dealing the revision/amendment issue was a case regarding a amendment enabling public agencies to make contracts for engineering and architectural purposes, whereas previously, that power had been held only by the Legislature. The court held that since this power had not been transferred from the Legislature to the Executive branch, but had been given to the Executive branch while still retained by the Legislative branch, it was an amendment not a revision.
In summary, the Court held, the case law again and again decides whether something is an amendment or a revision of the California Constitution depends on whether it is a fundamental restructuring of the California government. Under this reading of the case law, the answer to the first question before the court is quite clear. Proposition 8 is a constitutional amendment, not a constitutional revision. Given that they other arguments that prop 8 was unconstitutional were also found to have no merit, prop 8 holds as valid law.
To a large measure, I feel compelled to agree with a point of little constitutional importance that, ultimately, seems to be at the heart of this matter:
In a sense, petitioners’ and the Attorney General’s complaint is that it is just too easy to amend the California Constitution through the initiative process. But it is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it.
Given the legal issues, as I understand them from the majority's opinion and Justice's Moreno's dissent, I feel that the court made the correct decision in this case. It was a slight majority of voters last November who made the wrong decision. And given the relative rapidity of changing opinions of same-sex marriage, and given the increasing number of states with same-sex marriage, I fully expect Proposition 8 to be overturned by the electorate in the next few years.