Proposition 8 Litigation Generates a Mountain of Paper

The trickle of petitions filed with the California Supreme Court after California voters approved Proposition 8 on election day has grown into a small flood, leading the Court to set up a special section of its website to make them accessible to the public. Proposition 8, when finally certified as having been approved, enacts an amendment to the California Constitution providing that "Only marriage between a man and a woman is valid or recognized in California." This overrules the Court’s May 15 decision, holding that same-sex couples have the same entitlement as different-sex couples to marry in California. The Court was scheduled to hold its first case conference since the petitions were filed on Wednesday, November 19, but it was not known at our deadline whether it had issued any ruling on the petitions.

The day after the November 4 vote, petitions seeking to block Prop 8 from going into effect and to have it declared invalid were filed by a coalition of LGBT litigation groups and the American Civil Liberties Union, with National Center for Lesbian Rights taking the lead, representing a group of same-sex couples who seek to marry in California, and by Robin Tyler and Diane Olson, who married over the summer. The next day, the cities of San Francisco and Los Angeles and Santa Clara County filed their petitions, complaining that Prop 8 imposed inconsistent constitutional obligations on them. All of these petitions argued that Prop 8 was actually a "revision" of the Constitution masquerading as an amendment, and thus could not be validly enacted through the initiative process. Under the state’s Constitution, a revision must go through a more demanding legislative process, winning at least 2/3 approval from each house of the legislature before being placed on the ballot, or be proposed by a specially convened constitutional convention before being placed on the ballot.

On November 12, the Court reacted to the petitions by requesting a response from California Attorney General Jerry Brown, to be filed by November 17. In the meantime, several more petitions against Proposition 8 were filed. On November 14, a coalition of the Asian Pacific American Legal Center, the California State Conference of the NAACP, the Equal Justice society, the Mexican American Legal Defense and Educational Fund, and the NAACP Legal Defense and Educational Fund filed a petition, joining with the original petitioners to seek immediate relief and arguing that allowing Proposition 8 to go into effect would endanger the civil rights of all minorities in California, not just the LGBT community.

But that was not all. Within the next few days, further petitions were filed by Equal Rights Advocates and the California Women’s Law Center, and the California Council of Churches, jointed by a group of liberal and progressive Christian and Jewish organizations.

Many of the state’s largest and most prestigious law firms collaborated on these petitions and accompanying briefs. In addition to the petitions, many other organizations addressed letters to the Supreme Court supporting the petitions. Letters were filed on behalf of a group of forty-four California state legislators, the San Francisco Bar Association and other progressive Bay Area legal organizations, the Beverley Hills and Los Angeles bar associations and other groups of bar associations, legal services organizations, minority community organizations, law school clinical programs, as well as a letter on behalf of 18 distinguished California law school professors and deans.

Of course, a handful of pro-Prop 8 groups also sent letters to the Court, urging it to reject the petitions, and the Court also received a motion to intervene in the case from the Proponents of Prop 8, who argued that the Attorney General, who had opposed the passage of the measure and whose interpretation of its effect on existing same-sex marriages differed from that of the Proponents, could not be expected to present all the arguments on behalf of the measure’s validity.

The constant refrain of all of the petitions and letters against Prop 8 was that the Court should not countenance the contention that a simple initiative majority vote could take away a "fundamental right" from a minority group defined by a "suspect classification." This argument derived from the California Supreme Court’s May 15 decision in the Marriage Cases, in which the Court described the right to marry as an "inalienable right" and determined that sexual orientation is a "suspect classification" for purposes of California equal protection doctrine. Although each of the petitions provided a slightly different perspective, they were all aimed at advancing the argument: that despite its brevity and apparent focus on the narrow topic of marriage, Prop 8 had the effective of significantly altering a basic aspect of the state’s constitutional scheme. Some of them advanced a significant variation of the earlier theme, identifying as "fundamental" not only the right to marry but also the right to equal protection of the law, arguing that Prop 8 has the direct effect of "revising" the state’s equal protection clause by abridging the equal protection accorded to LGBT individuals, who are singled out for less favorable treatment than other individuals.

The petitions and letters on behalf of the civil rights groups raised the concern that allowing Prop 8 to stand would fatally undermine the state constitution’s guarantee of equal protection to minority groups. Equal protection guarantees are seen as "countermajoritarian," as they empower the judiciary to protect minorities from the oppression of popular majorities. If a simple initiative could permanently overrule an equal protection decision of the Court by enacting a constitutional amendment, they argued, the guarantee of protection against the tyranny of the majority was essentially empty.

Without taking sides on the merits of this argument, the Attorney General responded to the petitions on November 17 by agreeing with the petitioners that Prop 8 presented a significant question that should command the prompt attention of the court. "The petitions raise issues of statewide importance," said the response, "implicating not only California’s marriage laws but also the initiative process and the Constitution itself. It is appropriate for this Court to address these issues to provide certainty and finality in this matter. Accordingly, respondents support the request that this Court accept these petitions and address these important issues."

However, Brown opposed the petitioners’ request that the effect of Prop 8 be suspended until the Court has finished deciding the issues raised by the petitions. He contended that "a stay would change the status quo, allowing marriages that might later be invalidated, and would engender uncertainty about the legal status of same-sex marriages in California." Concerned that this position might be seen as contradicting his prior statements that he considered the same-sex marriages already performed to remain valid, Brown added a footnote stating that nothing in his response "should be construed to suggest that the Attorney General questions the validity of any same-sex marriage that occurred after the effective date of this Court’s decision in In re Marriage Cases, but before November 5, 2008." Brown also raised no objection to the request by the Campaign for California Families, the proponent of Prop 8, to intervene and participate in any proceeding before the Court.

But Brown refrained from going on record on the merits of the petitions, studiously avoiding any engagement with the "revision versus amendment" debate, and labeling his response as "preliminary." This way, he would not have to take a formal position if the Court decides to dismiss the petitions without ruling on their merits.

Although Pacific Justice Institute, a conservative litigation group, promptly filed a letter urging the Court to decline jurisdiction and dismiss the petitions without a hearing, the proponents of Proposition 8 took a different course, agreeing with Brown that the Court should quickly take up the case and rule on the merits, while denying a stay or any other preliminary relief. "Proposed Intervenors agree with Petitioners that the validity of Proposition 8 is of great public importance and should be resolved as soon as possible," they wrote, emphasizing that the issues before the court were "purely legal" so there was no need to send the matter to a trial court for fact-finding. The Proponents urged the court to "set a schedule for expeditious briefing and oral argument."

They also outlined the substantive argument they would make, characterizing the Court’s past decisions on challenges to initiative amendments as fully supporting their position that Proposition 8 is a valid amendment. They noted that the Court has frequently sustained amendments that affected or changed fundamental rights, and argued that the right to marry or the right to equal protection were no more insulated from popular constitutional enactments than the other rights at issue in past amendment campaigns. They also pointed out that similar revision-vs-amendment arguments had been raised in Oregon, Alaska and Massachusetts, and rejected by the appellate courts in those states. They emphasized that the rare instances in which the California Supreme Court invalidated initiative amendments concerned those going to the very structure and allocation of powers within the state government, and noted that the Court had upheld amendments that specifically overruled court decisions on fundamental rights, such as the court’s death penalty rulings, and that had altered the financing of state government by placing restrictions on local property taxes.

Supporting Brown’s opposition to a stay or preliminary relief, they observed that under California law, Proposition 8 was effective as of November 5, so a stay is actually a change of the status quo rather than, as in the usual case, a measure to preserve the status quo. As of November 5, same-sex marriages are no longer valid or recognized in California, they argued. In attempting to minimize the impact of Proposition 8, they characterized it as merely an attempt by the voters to restore the status quo that existed before the Court’s Marriage Cases ruling, a simple reversal of the Court, rather than a "revision" of the Constitution, and they argued that the placement of a particular definition of marriage in the Constitution did not disempower the courts from protection the equal protection rights of gay people.

In light of the agreement of the opposing parties that the case is properly before the Court for resolution and should be decided on the merits, it seemed unlikely that the Court would simply dismiss the petitions or send the matter to a trial court, but nothing is really predictable about this case, which is in many respects quite unprecedented.