Jerry Brown Proposes a New Theory Against the Validity of Proposition 8

December 19 was the due date for briefs in opposition to the petitions that had been filed last month with the California Supreme Court seeking the invalidation of Proposition 8, the ballot initiative measure that has added a different-sex definition of marriage to the California Constitution. Briefs were filed on behalf of the State of California, by the office of Attorney General Edmund G. Brown, Jr., and on behalf of the Official Proponents of Proposition 8 – who have been granted Intervenor status by the Court – by Kenneth W. Starr, dean of Pepperdine Law School, who is representing the Intervenors together with Andrew P. Pugno. The big surprise was that the Attorney General’s brief proposed a new theory for invalidating Proposition 8 that had not been articulated in the prior filings in the case: that Proposition introduced an untenable tension into the State Constitution that could only be resolved by striking it down.

Starr’s brief provided what had been expected from the Intervenors, arguing that Proposition 8 was not a "revision," merely an amendment, and thus capable of being proposed and enacted through the ordinary initiative and referendum process authorized by the state constitution. This argument was buttressed by a close reading of the case law that the California Supreme Court has generated over almost a century in considering post-election challenges to Initiative Amendments, and was very persuasively done.

Starr also argued that the measure did not violate separation of powers, drawing analogies from past Propositions that had amended the State Constitution by making substantive changes that effectively overruled the Court’s interpretation of the Constitution on particular contentious issues.

Finally, and the only point really deemed newsworthy by the press, Starr argued that by the plain language of Proposition 8 and the way it was described in the ballot pamphlet, it was clear that no same-sex marriage was valid or recognized in California effective November 5, regardless whether it was performed validly elsewhere or was one of the same-sex marriages performed in California during the months prior to the vote. The question whether the approximately 18,000 same-sex marriages performed from June to November would continue to be valid and recognized in California was one of the questions put to the parties by the Court in response to the Petitions that had been filed by National Center for Lesbian Rights, the cities of San Francisco and Los Angeles, Robin Tyler and others seeking to have Proposition 8 invalidated, and it is a question that has attracted significant attention from the press.

Perhaps surprising to some, Brown’s brief essentially agreed with Starr in responding to two out of the three questions posed by the Court: whether Prop 8 was a revision or an amendment and whether Prop 8 violated separation of powers.

Reviewing the same case law that received minute attention in Starr’s brief, Brown concluded, apparently with some reluctance, that if the Court’s prior cases on this question were the basis for analysis, Prop 8 would be considered an amendment, not a revision. The Court could only deem Prop 8 to be a revision by striking out in a new direction that would involve disavowing some of its prior cases on the issue. It seems that in all the challenges raising this question, the Court had invalidated only two Initiative Amendments as being revisions. One was an extensive proposition intended to repeal and replace substantial portions of the Constitution and in the process also substantially reorganize the structure of the government. That was an easy case for finding a revision that could not be effected by a simple voter initiative. The other case, reacting to liberal California Supreme Court rulings on criminal procedure, sought to limit the Court’s ability to construe the State Constitution by providing that it could not be interpreted to provide greater rights to criminal defendants than were afforded by the federal constitution, thus in effect transferring from the California Supreme Court to the U.S. Supreme Court the power to authoritatively construe the California Constitution’s provisions affecting the rights of criminal defendants. It is not hard to see how this would be found to be a revision, in the sense that it was a substantial reduction of the power of the state judiciary to deal with an extensive range of frequently-litigated issues.

In every other case, challenges to initiative amendments have been rejected, even though many of those cases involved reversing the California Supreme Court’s decisions on questions of fundamental constitutional rights. Most notably, the Court has rejected challenges to initiative amendments that banned affirmative action and that reinstated the death penalty. Starr argued that it was not plausible to contend that placing a particular definition of marriage in the Constitution was a forbidden "revision" when these prior amendments had been upheld. Starr drew support from the Supreme Court’s pronouncements that the revisionary nature of an Initiative Amendment must be clear on its face in order for it to be held a revision. It is not clear from Proposition 8's language that it is intended to do anything than to define the legal classification of marriage in California in a particular way, Starr argued, and Brown basically agreed. A particular quote from an old California case that had been heavily relied upon by the Petitioner’s was diminished by Starr as a dictum from a case that predated the 1911 revision of the initiative process that had established the authority of the voters to initiate constitutional amendments.

The separation of powers point also drew agreement from the two responding briefs, both concluding that the Supreme Court’s past cases upholding Initiative Amendments that overruled Supreme Court rulings construing the State Constitution would not support the argument that effectively overruling the Court’s May 2008 decision in the Marriage Cases was a breach of separation of powers. The voters have rebuffed the Supreme Court’s reading of the Constitution in matters involving fundamental rights several times, Starr and Brown agreed, and the Court has never seen that as itself a basis for striking down such an Amendment.

Starr and Brown parted company, however, on the question whether Prop 8 would invalidate same-sex marriages performed prior to its enactment. Starr rested on the plain language and the ballot description, which made clear, in his view, that no same-sex marriage would be valid or recognized in California from the date of enactment forward. This did not mean that the marriages in question were invalid when they were performed, and Starr contended that the various subsidiary questions that might be raised as a result of Prop 8 – for example, how to deal with property rights of couples who married over the summer and acquired real property or entered into contracts in the status of married couples – should be dealt with on a case by case basis as the need arose. Presumably, a court could decide in a particular case that because a couple was validly married when they made a contract or acquired some real property or engaged in some other activity having legal consequences, they should be dealt with for the limited purpose of a particular lawsuit as being married... I’m just speculating here about what Starr might have meant in this part of the brief, since he didn’t spin out examples, and it is unclear to me how a court after November 5 could recognize such a marriage even for such a limited purpose without violating the plain language of the Amendment.

Brown argued, on the other hand, that it was not clear on the face of Proposition 8 that it was intended to have retroactive effect, and that courts apply a presumption against retroactive application of a new measure unless it is clear that retroactivity was intended. He dismissed the significance of the statement in the ballot pamphlet that Prop 8 was intended to render invalid and unrecognized same-sex marriages wherever and whenever performed, presumably as not communicating sufficiently clearly to voters that by approving Prop. 8 they were effectively dissolving the thousands of marriages that had been performed since the Supreme Court’s marriage decision.

Brown argued that Prop. 8 could not affect what the law was prior to its enactment because the California Supreme Court’s ruling in the Marriage Cases was the law of California until November 5, thus those marriages were legal when they were performed, and that the proponents of Prop. 8 had not unequivocally stated that undoing those marriages was part of what was intended.

Brown also argued that applying Prop 8 "retroactively" would "raise significant issues under the United States Constitution," and so it should be interpreted to avoid raising those issues. This is a well-established strategy in constitutional law, and courts will frequently adopt a narrow construction of a new statute or other state-level measure if by doing so they can avoid raising federal constitutional questions. He implied, for example, the retroactive application might be found to impair "vested property rights without due process of law," and would overturn the "settled expectations of couples who entered into these marriages in reliance on the holding in Marriage Cases." Retroactive application might also be held to impair contract obligations, something states are forbidden from doing under the Contracts Clause of the federal Constitution. He drew a distinction with the marriages performed in San Francisco early in 2004 that were then held invalid by the Court. Those marriages, he said, were contracted at a time when it was uncertain whether the city of San Francisco had the authority to perform then and the Supreme Court had not yet spoken on the merits of the constitutional claim to marriage equality. By contrast, the marriages at issue now were performed after the Supreme Court had spoken, and were clearly legal at the time, so people could justifiably rely upon their continued validity. (The easiest rejoinder to that point is that the Prop 8 petitioning was actually concluded prior to the Court’s Marriage Cases decision, and the measure was certified for the ballot before the decision went into effect, so every couple married with the knowledge that Prop 8 was on the ballot in November. In that circumstance, reliance on the continuing validity of their marriages, especially when this very question was being widely discussed in the press, would not have been justified.)

In any event, the really newsworthy part of Brown's brief was his additional point, that Prop 8 should be invalidated "even if it is deemed to amend the Constitution because it abrogates fundamental rights protected by Article I without a compelling interest." Brown pointed out that Article I, Section 1 of the California Constitution protects those rights considered by the framers to be "inalienable" rights. An "inalienable" right is one that by definition cannot be taken away from the individual by government, and cannot be abridged without some compelling justification. While it is true that the Constitution authorizes the Initiative Amendment process, Brown found a tension between the power to amend and the protection of inalienable rights. "In reconciling these separate constitutional provisions," says the brief, "Respondent concludes that the initiative power could never have been intended to give the voters an unfettered prerogative to amend the Constitution for the purpose of depriving a disfavored group of rights determined by the Supreme Court to be part of fundamental human liberty."

Here the Court’s stirring rhetoric in the Marriage Cases comes into play, because the Court treated the right to marry, without regard to gender or sexual orientation, as a fundamental right under Article I, Section 1. Brown insisted that this was not about the amendment-revision distinction, but rather about the more fundamental question: "Is the initiative-amendment power wholly unfettered by the California Constitution’s protection of the People’s fundamental right to life, liberty, and privacy?" He argued that Article I, Section 1 "enjoys a privileged status in the plan of the Constitutional Conventions as the essential safeguard of individual freedom," and that the records of those conventions that had drafted the Constitution showed that these rights were intended to be "inalienable," a word that takes its resonance from the Declaration of Independence of 1776.

"The rights recognized as ‘inalienable’ by the Framers in 1849 and 1879 were so designated because it was generally believed as a matter of political philosophy that a constitution is not the source of these rights. The rights ‘antedate’ the constitution as inherent in human nature, and the constitution is the covenant by which Society secures those inherent freedoms to itself. These rights were not surrendered in the ‘social compact.’"

This is an intriguing argument. It suggests that there are certain rights so fixed by natural law that even a constitutional convention process in which all the niceties of due process are preserved could not effectively amend the Constitution to override them. As such, there is a certain irony to this argument being made in what is, in substance, a gay rights case, since the religiously-inspired types who reflexively oppose gay rights claims usually do so, in essence, from their view that homosexuality is "unnatural" and contrary to God’s law. Certainly, this was a prime motivation behind the organized Catholic, Mormon, and Evangelical church support behind the Prop 8 campaign.

Brown argues that in fact the California Constitution goes further than the U.S. Constitution in acknowledging the primacy of fundamental, inalienable rights. Recall that the federal Constitution drafted in 1787 said little about rights. The Bill of Rights drafted adopted in 1791 went further, although it imposed restrictions only on the federal government. When the California Constitution was drafted in 1849, then, the people of California were in advance of the federal government in embodying in the very first article of their Constitution a guarantee of fundamental, inalienable rights to life, liberty and property. Brown acknowledged that the 1849 framers were not thinking of same-sex marriage when they spoke of liberty, but argued that "the scope of liberty interests evolves over time as determined by the Supreme Court," and that historical support for the argument that the right to marry is a fundamental right dates back in California constitutional law at least to the Perez case of the 1940s, that struck down the state’s miscegenation law. "As this Court had done in Perez," he continued, "the Court in In re Marriage Cases held that the civil right to marry is not a right limited by Nineteenth Century notions about the nature of that institution, and the Court extended the right – as a liberty interest – to include same-sex couples."

If a right is seen as inalienable, then it cannot be taken away by the government. This is a necessary corollary of the concept that there are some natural rights that precede government and that it is, in fact, the duty of government to protect. While those rights are not absolute – courts have upheld government’s ability to condition or abridge rights in compelling circumstances – the general presumption is that such rights prevail. Brown argued that the Framers of the California Constitution specified those inalienable rights in Article I, Section 1, "to act as a check on legislative excesses. Given that protective purpose, the Framers (and the People) would not have endowed the Legislature with the power to eliminate a judicially recognized fundamental liberty interest through a constitutional amendment passed by popular vote – at least not without a compelling reason for doing so." And, apparently, in Brown’s view, that a majority of voters want to eliminate the right is not in itself a "compelling reason." Brown argued that when the constitution was changed to extend the amending process to voter initiative, there was no intent to give the voters power to do what could not be done under the preceding procedures: eliminate fundamental rights through amendments.

Brown argued that the Supreme Court should "harmonize" the fundamental right jurisprudence of Article I with the amendment power placed in Article XVIII by finding that rights identified in Article I may only be altered by amendment when there is a compelling reason to do so, since otherwise Article I "would be stripped of all meaning." "The Court should give expression to the guarantees secured by article I, section 1, by evaluating whether the proposed initiative-amendment sufficiently furthers the public health, safety, or welfare. Mere majority support alone for the measure does not suffice."

Brown pointed out that in this case, in addition to the fundamental right at stake, the amendment sought to remove it for a "suspect class." In the Marriage Cases, the Court had decided that the arguments made in support of Prop 22, the initiative that enacted a different-sex definition of marriage in statutory form in 2000, were not sufficiently compelling to justify abrogating the right of same-sex couples to marriage. Brown argued that since Prop 8 sought to put the identical language in the Constitution, the identical analysis should apply, and Proposition 8 "should be stricken as inconsistent with the guarantees of individual liberty safeguarded by article I, section 1 of the Constitution."

This is a bravura move by Brown. Whether the Court will embrace it is a question of some moment, since it would mark a new jurisprudential wrinkle in the law of constitutional amendments. I don’t think there is really any precedent for it, at least in federal Constitutional Law. While the brief cites various cases for specific points of the argument, it does not cite any case that supports the entire theory that the amendment process, either federal or state, is constrained by the identification of fundamental, inalienable rights in the Constitution itself, in combination with the "legislative history" showing that the Framers of the document considered such rights to be nature-derived and inalienable, in the sense articulated by Jefferson and the Continental Congress when they adopted the Declaration of Independence. In some ways, it is a startling use of the concept of "original intent" of a type that is calculated to infuriate many of those who identify themselves with that school of constitutional interpretation, such as U.S. Supreme Court Justice Antonin Scalia. I wonder what impact it will have on the California Supreme Court, which now occupies the political-jurisprudential hot seat of deciding the fate of Proposition 8, the result of one of the most expensive initiative battles in history.

Comments

[Jim Kelly]

Art wrote: "I don’t think there is really any precedent for it, at least in federal Constitutional Law."

What about Romer v. Evans? Justice Kennedy was pretty clear in rejecting the use of the ballot box to target a minority, No?

[Art Leonard]

In Romer, the US Supreme Court invalidated a STATE constitutional amendment using the FEDERAL equal protection clause. That's an entirely different kettle of fish.

Brown is arguing that a new state constitutional amendment is "unconstitutional" because it conflicts with natural law.... This is the kind of argument that could open up quite a can of worms. Brown only makes a federal constitutional argument in connection with the retroactivity point, intimating that retroactively invalidating the summer's same-sex marriages might violate federal due process.

[Yehuda]

Art,
Have you read Bob Ostertag's Huffington Post article at
http://www.huffingtonpost.com/bob-ostertag/why-gay-marriage-is-the-w_b_152717.html
He asks the question that I've been pondering, 'What's so important about gay marriage -- as long as all other rights and liberties pertain to GLBT folks?' I'm curious as to your response. Thanks.

[Art Leonard]

I haven't read that post. I think, however, that if you read Chief Justice George's opinion on the point, you will find a very adequate explanation of why the status of marriage has a meaning that transcends the legal bundle of rights that could be provided through civil unions or domestic partnerships. The same point is very well made in the eloquent Connecticut Supreme Court decision. It is the animating principal behind Brown v. Board of Education - that separate is not equal and can never be equal, no matter how close one comes in terms of legal rights, because there is also a psychological and social component to this entire issue of family status that is not fulfilled by strict equality of legal rights. (Furthermore, due to federal DOMA, it is clear that civil unions and domestic partnerships on the state level can never provide true equality even in terms of legal rights.)

[Gib Wallis]

Did you find a copy of the Official Proponents / Starr brief online?

It's not posted on the California Supreme Court website yet.

[Art Leonard]

I did a google search and finally found a copy of it linked to somebody's website. Don't remember now where that was. These days, just about any official document filed on a controversial topic can be found on-line with enough persistant searching. I was surprised that neither Starr nor Brown's briefs had been posted to the court's website. Haven't checked back in the past day or so, however, to see whether they've gotten up there yet.

[Laurel]

If the court rules the "interim" marriages invalid in CA, will CA still be required to keep the licenses on file? Is it possible that the records could be purged, increasing the chaos and making proof of marriage outside CA or in the CA courts problematic? The haters will stop at nothing to hurt us. Is this another possible avenue open to them?

[Art Leonard]

Attorney General Brown correctly points out in his brief that "retroactive" invalidation of the marriages will create all kinds of difficulties, and this is one of them. At the time the marriages were performed, they were legal, so the official records of them would presumably have to be maintained in case circumstances arise in which their existence requires proof.

I've speculated before that given the peculiar wording of Prop 8, it's only effect is within California, in the sense that it does not purport to invalidate lawful same-sex marriages that might have occurred in California so far as other states are concerned. Thus, I believe that even if Prop 8 is upheld by the Court, and found to prospectively invalidate those same-sex marriages "in California," they would still be valid in any other jurisdiction that recognizes same-sex marriages.

So herewith a standing invitation from a New Yorker: As of now, my state recognizes same-sex marriages contracted elsewhere, even thought one cannot enter into such a marriage here in NY at present. California same-sex spouses who suffer the slings and arrows if Prop 8 is allowed to remain in effect and is held to invalidate their marriages in California are welcome to relocate here.

One of the unfortunate things about this entire mess is that the only states that do recognize same-sex marriages, as of now, all have much less desirable climates (weather-wise, that is) than California. But we have far fewer forest fires!

[Bruce]

Brown's brief is on his own site.