Proposition 8: Challenges Filed

According to news reports, California voters approved Proposition 8, a proposal to amend the state constitution to provide that only the marriage of one man and one woman shall be valid or recognized in California.   The opponents of Prop 8 maintain that the measure should not be declared enacted until millions of outstanding uncounted ballots have been tabulated, even though based on votes counted as of this morning the proponents of the measure had 400,000 more votes than the opponents.  It will probably take a few days to sort this out.

Meanwhile, three legal challenges have been filed in the California Supreme Court, seeking emergency relief against the new constitutional provision.  One suit, filed by Gloria Allred's law firm on behalf of Robin Tyler and her wife, Diane Olson, places front and center the injury that would be suffered by those who married since the Court's Marriage Cases decision last spring if their marriages were suddenly to be deemed invalid and unrecognized in the state.  The other suits, filed by the leading LGBT public interest law firms and the ACLU, and by three governmental entities (cities of San Francisco and Los Angeles, and Santa Clara County), represent several couples who planned to marry in California and now would be barred from doing so, and the government entities, who would be precluded by Prop 8 from honoring the right to equal protection of the laws of their gay residents.

All three suits proceed on essentially the same theory - that because the amendment alters the fundamental equal protection rights guaranteed by the state constitution, as they were identified by the Court last spring in the Marriage cases, it constitutes a "revision" of the constitution rather than a simple amendment.  Under the California Constitution, a voter initiative can lead to a simple amendment, but not to a revision.  In order for the initiative to revise the constitution, supermajorities of the legislature must propose it to the people for enactment.  The idea behind this is that there should be a broad political consensus in the state before revising the fundamental charter of government, not merely a simple majority vote of the electorate as a result of a measure placed on the ballot through the petitioning process. 

The briefs filed in support of these legal challenges cite some prior cases where the Court has invalidated initiative amendments on the ground that they worked a revision in the constitution.  The arguments are ingenious.  In particular, they focus on the contention that a simple majority initiative may not be used to overrule an equal protection decision by the Court.   In this case, the argument is that the new amendment cannot coexist with the constitutional provisions on which the Court based its Marriage Cases ruling; thus the amendment has in effect "revised" the guarantee of equal protection in the context of the constitutionally fundamental right to marry.  The petitioners suggest that Prop 8 upsets the balance of powers established by the constitutiton, but in effect taking away from the Supreme Court its role as the ultimate arbiter of equal protection.  Thus, the San Francisco brief argues, "To suggest that our system allows a bare majority of voters to veto the ruling of this Court on these critical equal protection questions is to degrade the California judiciary's long and proud history of protecting the rights of minorities."

I am not a scholar of California constitutional law, thoroughly versed in these precedents, so I'm not in a position to opine on the chances of success for these lawsuits.  I would have thought as an original matter that a federal constitutional challenge would be a better way to attack this state constitutional amendment, but that is only in theory, of course, because one must face the reality that the federal courts are conservatively constituted as a result of the fact that Democratic presidents have had the opportunity to appoint only two justices of the US Supreme Court since 1969, when Richard Nixon was elected president.   There were no vacancies on the Court during Jimmy Carter's single term, and Bill Clinton got only two appointments during his first term.  Thus, the Court as presently constituted consists of 7 Republican appointees and 2 Democratic appointees, and the overall balance is very conservative on Equal Protection and Due Process issues.  Although it is essentially this balance of the Court that decided Romer and Lawrence, the two major pro-gay-rights decisions of the Court, it is also this balance of the Court that decided Boy Scouts v. Dale, one of the biggest gay rights defeats.  So taking this new controversy to the federal courts at present would be a last resort.

On the other hand, in the Marriage Cases, the California Supreme Court adopted an expansive interpretation of the state constitutional guarantees that treated gay people as worthy of the most stringent state constitutional protection against discrimination or exclusion from participation in the fundamental rights of citizenship, among which the court numbered marriage as essential.  So, the argument goes, this court will be sensitive to an attempt by opponents of same-sex marriage to alter the constitutional balance through their initiative. 

I haven't heard of any similar challenge being filed against the two other anti-gay marriage amendments passed yesterday, in Arizona and Florida.  Perhaps their state constitutions and cases interpreting them do not provide the same theoretical arguments.  More significantly, however, in neither of those states do the amendments work an immediate deprivation of rights, since same-sex couples were not entitled to marry in either place by virtue of state DOMA statutes, and in Arizona there is an appellate decision, Standhardt, rejecting the argument that same-sex couples have a right to marry.

The other initiative measure passed yesterday, in Arkansas, is singularly stupid.  It enacts a statute banning unmarried couples from serving as foster or adoptive parents, thus ruling out a broad class of prospective (and ongoing?) relationships that are vital to the interests of children in need.  This initiative responds to a state supreme court ruling finding that there was no legitimate basis for a regulation that had been adopted by the state barring such placements, because it did not advance -- indeed, defeated -- the statutory requirement to make such decisions in the best interest of children.  So, this is a clear use of the initiative process to overrule a decision by the state supreme court by creating a statutory authorization for what the stricken regulation was intended to accomplish -- disqualifying gay couples from being foster or adoptive parents.  (Throwing the baby out with the bathwater, it also disqualifies unmarried heterosexual couples, and will probably generate a crisis for the Arkansas child welfare system as a result.)  While the state supreme court's ruling was a constitutional ruling under the separation of powers doctrine, this initiative does not overrule the court's constitutional ruling; instead, it removes the separation of powers problem by changing the statute to, in effect, authorize the regulation that was stricken as unauthorized by the court.  As such, I imagine that this proposition does not present the same ground for challenge that California Prop 8 does.  On the other hand, it should be open to challenge as creating classifications that violate the fundamental rights and equality guarantees of the Arkansas constitution.

Comments

[Jack]

Here is an article, called "Unamendments," on when constitutional amendments are unconstitutional: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=803864
[available for free downloading]

[anonymous]

There is now way this should stand up under the first amendment.

Presbyterian and Methodist churches have performed gay marriages in the past.

Prop 8 forces those churches, by law, to use the same definition of marriage as the Mormon, Catholic, and Evangelical churches.

This law shows preference to some churches and imposes restrictions on others. It allows one group of churches to monopolize the word marriage.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...", sound familiar?