Strauss v. Horton: Law, Politics and Prop 8, part I

As predicted, the passage of Proposition 8 did not end the question of same-sex marriage in California. The Supreme Court has agreed to hear a challenge of the validity of Proposition 8 in a case that appears to be titled Strauss v. Horton. The three questions that the court certified are as follows:

1. Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?


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 marriages of same-sex couples performed before the adoption of Proposition 8?

Partly to satisfy my own curiosity and partly to help others wade through these issues, I have done some research on issues 1 and 2 (I'll leave 3 for another day). I am not an expert on California Constitutional Law, but I know a thing or two about constitutional law in general, so here is my attempt, for what it's worth.

Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?

This seems to be the best argument for overturning Proposition 8. As provided in Section 18, an amendment to the California Constitution can occur by initiative, but a revision to the constitution must start by the legislature approving a a revision commission ballot question. The ballot question must be approved by a general election of the state, then a revision commission writes a new constitution, then the constitution must be supported by a majority at another general election. Absent that process, the California Supreme Court can rule that the subject matter of a proposed amendment would amount to the revision of the California Constitution and so much go through the more rigorous process. An explanation of the difference between an amendment and a revision is written here, a portion of which I have excerpted below:

"Amendment" implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed. The revision/amendment analysis has a dual aspect, requiring us to examine both the quantitative and qualitative effects of the measure on our constitutional scheme. Substantial changes in either respect could amount to a revision. An enactment which is so extensive in its provisions as to change directly the "substantial entirety" of the Constitution by the deletion or alteration of numerous existing provisions may well constitute a revision thereof. However, even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also.

The question is whether Proposition 8 affects the substantial entirety of the California Constitution. Initiatives in the past that have been held to be revisions by the California court include not only initiatives that attempt to change several parts of the constitution at once (McFadden v. Jordan), but also those that would enact a fundamental qualitative change in the structures of the government, such as an initiative to limit the criminal procedure protections of the California Constitution to those that are recognized in the federal constitution (Raven v. Deukmejian).

Prop 8 only touches on one subject and is limited to one existing right of that subject. In that sense it is fairly different than those cases that I mentioned earlier. But I think there is still a fairly good case to be made that Prop 8 constitutes a revision. When viewed through the lens of California Constitutional law, Proposition 8 purports to strip a fundamental right from a suspect class. To affirm Prop 8 as an amendment, the Court would have to either revisit one of these two classifications (which they are unlikely to do) or draw a line that says what fundamental rights can be stripped from suspect classes before it constitutes a fundamental qualitative change in the California Constitution. I just don't think that the opinion in Marriage Cases gives them the wiggle room to say that. Because I think that the court won't write an opinion that says that stripping a fundamental right from a suspect class can be accomplished by a majority vote, I think that this argument is a winner.

Does Proposition 8 violate the separation of powers doctrine under the California Constitution?

The argument, as I understand it, is that Proposition 8 is a legislative attempt to relitigate and overturn a judicial judgment, which is a core judicial function. Words cannot express how bewildering this argument is to me. The only reason that separation of powers would matter is as a means of determining whether prop 8 constitutes a revision. I can only conclude that the court certified this question as a subset of the revision question; that makes more sense given that a change in the allocation of governmental power is per se a revision of the constitution. So I will approach it in that way.

Regardless of the function of this argument, I just don't think it's very good. The check and balance on the judiciary is that if the court interprets a statute in the way that the legislature doesn't like, the legislature passes a new law. If the court interprets the constitution in a certain way and the legislature doesn't like it, they start the process to amend the constitution. It seems like this argument would apply to every new law or amendment. It also can't be said that the court has a special role in protecting minorities. If anything, that role is incidental to the courts' role in interpreting the constitution, not an inherent judicial function. I don't know; maybe I'm missing something. If someone wants to tell me that I'm wrong and this is a good argument, feel free to explain it to me. I'm lost.

OK, I've had my say on the law. Feel free to read some more qualified musings on the subject here, here, here, and here. Stay tuned for part two on Thanksgiving. Fight the tryptophan to read my analysis of the politics that the Court faces in this case and why they may affect the decision as much as the law.