As of today, both the defenders of Prop 8 and its challengers will have filed their briefs with the California Supreme Court in the litigation seeking to overturn the popular vote that has reinstated a ban on same-sex marriage. (Amicus briefs are due in two weeks.) A number of commentators have opined that those seeking to have Prop 8 invalidated have little chance of success.
My view: not so fast.
The theory behind the challenge is that Prop 8 should be categorized as a revision, rather than amendment, to the state constitution. (CA Attorney General Jerry Brown has a different theory, that I analyzed earlier.) Unfortunately, there is little case law on the criteria for distinguishing between amendments and revisions. The California Supreme Court in the past has upheld most voter initiatives as amending the constitution, but has rejected a few on the ground that they amounted to revisions and should have gone through a different voting procedure because of that.
The power behind the distinction lies in the additional step that the state constitution requires for adoption of a revision. If a measure amounts to such a fundamental change that it should be considered a revision, it must be adopted by a two-thirds vote of the legislature (or a special constitutional convention) before being submitted to the voters. Since the California state legislature has twice voted to permit same-sex marriage (both bills were vetoed by the governor), everyone understands that there is no way Prop 8 could survive if it were required to go through the revision process.
The Prop 8 case poses a question of first impression: whether an initiative that singles out a group based on a characteristic that has been found by the judiciary to be constitutionally suspect, and deprives that group (and no one else) of a right that the courts have found to be fundamental, constitutes such a profound incursion into the principle of equal citizenship that it should be considered a revision under California law. Translated into more direct political terms - can a simple majority of voters deprive a stigmatized group of an especially important right, or should the greater restraint that attaches to the revision process be applied in those circumstances?
The answer is not obvious. To take just the issue at stake in Prop 8, more than half the states have adopted constitutional amendments by popular vote that ban recognition of same-sex marriages. In most of those states, the law draws no distinction between amendments and revisions. But in Oregon, which does draw such a distinction, the state supreme court upheld a ban on same-sex marriage as an amendment, i.e. as not requiring the revision process. In that state, however, the supreme court had not previously ruled, as the California Supreme Court ruled last May, that sexual orientation was a suspect classification, and thereby entitled to the highest level of judicial scrutiny when used as the basis for deprivation of rights.
i think that most of the prognostications of doom for the Prop 8 challengers are based on political rather than legal reasoning. The ruling that legitimated same-sex marriage in California was as close as it gets: a one-vote margin of 4 to 3 on the state supreme court. Voters rejected that outcome in November by a 52 to 48 per cent margin, which in California translates to an almost 600,000 vote difference. It begs the obvious to state that none of the three justices who voted against recognizing a constitutional violation in denying same-sex couples the right to marry would be likely to conclude that Prop 8 itself is problematic. So in raw power terms, it boils down to the question of whether all four justices who voted to declare that same-sex couples have a right to marry will stick together and essentially buck the will of the voters who rejected their analysis.
That's a huge political hurdle for the lgbt groups and their supporters who are challenging Prop 8. In my view, however, they have a strong argument on the merits. Those who framed the ground rules for voter initiatives for California in 1911 recognized that some changes to the constitution would be so significant that they should be required to go through a much more deliberative and multi-tiered process. Were they thinking about equal protection principles? In 1911, almost certainly not. But the idea of a "living constitution" is that it is sufficiently strong and supple to evolve. And today, principles of equal citizenship are recognized as central to our covenant for republican government.
I make no prediction about the outcome of this case. It will require tremendous courage for all four justices in the majority from last May to insist that a revision, rather than an amendment, process be utilized in this instance. That would amount to a (state) constitutional interpretation that is arguably even more far reaching and unprecedented than their original decision on marriage - a profound degree of protection for equality rights, of the sort seldom seen in judicial opinions. IMHO, however, it would be the right decision.
(Cross-posted at hunter of justice)