Strauss v. Horton, part III: Oregon Trail Edition

A lawsuit is very much like a game—there are players, referees, rules, tactics, strategies, and rewards. It appears from The State's brief in Strauss v. Horton,¹ the case determining the validity of Prop 8, that their game of choice is Oregon Trail. rather than go for an argument that is established by text and case law, the State has decided to blaze a new path.

The State's analysis of the validity of Prop 8 begins with the question of whether Prop 8 constitutes a revision of the California Constitution. It correctly articulates the standard for a revision as whether the provision "can be characterized as a change in the fundamental structure or foundational powers of California Government" (p. 28). It then undertakes a thorough and useful analysis of the relevant case law and concludes that Prop 8 is not a revision. The State gives two reasons for that conclusion: first, it argues that there is ample precedent for overturning fundamental rights through the initiative process. Second, the State argues that to rule that provisions against suspect classes are not subject to the initiative process would require the court to look outside of the four corners of the provision to determine its validity. It states that "If a court is confronted with an initiative addressing a right not yet deemed fundamental or a classification not yet deemed suspect, that court would find it extremely difficult to prevent the electorate from voting on the initiative or to invalidate the initiative post-election." (pp. 44-45). The court, therefore, would be limited under Petitioners' theory to those rights and suspect classes that are clearly defined by prior case law. The State concludes that "such a rule raises the possibility that the judiciary might appear to insulate its rulings from the initiative process by deeming certain rights as fundamental or certain classifications as suspect rather than deciding constitutional questions on narrower grounds." (p. 45).

The first argument is true, for what it's worth. I have never found the fundamental rights argument all that convincing in the first place. Fundamental rights are extrapolated from Constitutional common law, and just as legislation can amend the common law, so constitutional amendments should be able to amend constitutional common law.

The State's second argument is very sophisticated, but ultimately wrong. Limiting the court to suspect classes that are already declared is not a flaw in Petitioners' argument—it's the basis of the argument. As I mentioned earlier, the question on a revision is whether there is a change in the fundamental structure of the government. The relationship between government and the people is a part of that fundamental structure. While amending the constitution to legislate against a suspect class is a fundamental change in the structure of government,² there can be no change in the government's relationship with a class of people if legislation against that class is not already constitutionally suspect. In other words, you can't take away something that a person never had in the first place.³

Additionally, the argument that Petitioners' test would lead to the "appearance" of making rulings on broader grounds than necessary strikes me as disingenuous. This is not a real legal argument; it is a political one. However, what the argument likely means is that the Petitioners' test incentivizes broader constitutional holdings. Again, this is a feature, not a bug. Judicial minimalism is not constitutionally required, and in many circumstances, it is undesirable because it leaves the state of constitutional law unsettled. To the extent that the State is right (and I think that the effect would be marginal at best), this seems like it encourages the Court to actually interpret the state constitution and provide guidance to lower courts.

The State continues in its analysis by looking at the question of separation of powers. The state concludes as I did that the only reason that separation of powers would matter is as a means of determining whether prop 8 constitutes a revision, and that it isn't a very good argument. But this analysis is what makes their final argument so puzzling. The State spends 25 pages arguing that even if Proposition 8 is an amendment, that the court should strike it down because it abrogates fundamental rights without a compelling interest. In the next 25 pages of argument, nowhere does the state give any textual basis for the court's authority to strike down an amendment to the constitution on those grounds. Rather, it argues that rights protected by Article 1 of the California Constitution have a privileged status and were intended to be inalienable by the framers. Further, the initiative process was not intended to apply to article 1 rights. As a result, the court should only allow an amendment to article 1 protections when that amendment would survive strict scrutiny.

This test is as unsupported by existing case law and the text of the constitution as it is unnecessarily confusing. It would be the legal equivalent of traveling from Los Angeles to San Fransisco by going through Denver, if there were no roads connecting Los Angeles and Denver. First, the idea that there are extratextual limits on how a constitution can be amended goes against the principle of separation of powers and constitutional government. This interpretation would give the court not only the power to interpret the constitution, but also to prevent the people or the legislative branch from amending that document. It also implies that the courts have access to a higher, unwritten and unamendable law that supercedes the constitution, an unacceptable conclusion. Because the constitution is the supreme law of the state, the only legitimate restrictions on the amendment process are procedural. Procedures must be within the text and must be clearly expressed.

The State's argument is doubly mystifying because all of its arguments fit so well onto the amendment/revision framework. The very fact that the revision/amendment distinction exists is evidence that the framers wanted some changes to be subject to more than a majority vote. That the framers described Article 1 rights as inalienable is also evidence of their special status. Therefore, it would make sense to argue that these provisions, read in tandem, require restrictions to article 1 rights to go through the revision process rather than the amendment process. Rather than argue the application and extension of a clearly established procedure for overturning prop 8, the State decided to play their own version of Oregon Trail. It shouldn't be surprised when their argument dies of cholera.

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1. I covered the Petitioner's argument here and discussed some of the political pressures regarding the decision here.

2. But didn't I just say that fundamental rights could be changed by initiative? The distinction is something that requires its own post. Tune in on Friday.

3. Am I saying that if Prop 8 was enacted before in re Marriage Cases that it would have been legitimate under the California constitution? Yes, I am.