California Prop 8 Argument - A Compromise May Loom

The 7-member California Supreme Court, which voted 4-3 last May that same-sex couples had a right to marry under the California Constitution, heard arguments on March 5 about whether a slim majority of the voters on November 4 had validly amended the state’s Constitution to change that result by approving Proposition 8. The measure placed a new section in the California Constitution, Article I, Section 7.5, providing that "only the marriage of one man and one woman is valid or recognized in California."

In an unusual three hour argument during which only one of the six lawyers arguing to the court spoke in favor of the validity of Proposition 8, the justices, who are constitutionally obliged to issue a decision within ninety days of the argument, appeared to signal through their questions and comments that a compromise ruling is in prospect, under which Proposition 8 is upheld, but is interpreted to apply only prospectively, so as to preserve the marital status and rights of same-sex couples who married in the state prior to its passage.

Of course, predicting a result based on the questioning and comments during oral argument is a risky business, and some of the justices engaged more actively in the argument than others, so any predictions must be hedged, but the tone and atmosphere of the argument, which was broadcast live and is available, at least for now, on the court’s website, suggested little support for the challengers’ position on the measure’s validity.

Chief Justice Ronald George, who wrote the majority opinion for the court in the marriage case, signaled early by his questioning that he viewed the current case as presenting an entirely different question to the court, focused narrowly on whether Proposition 8 was an "amendment" or a "revision" as those terms are used in the constitution. An amendment can be enacted through a voter initiative. A revision requires that either the legislature or a constitutional convention propose the measure to be placed before the voters. If Prop 8 is a revision, it was not validly placed before the voters. Justice Joyce Kennard, who concurred in the marriage ruling last year, took pains to state repeatedly during the argument that this case presented a different question, and seemed to be laying the groundwork to justify a vote to uphold Prop 8 despite her support for the right to same-sex marriage..

Challengers to Prop 8 contend that it should be considered a revision because it alters the fundamental guarantee of equal protection of the law by carving out a distinct group – lesbians and gay men – whose defining characteristic, their sexual orientation, was identified by the California Supreme Court as a "suspect classification," and depriving them of what the court had labeled a "fundamental right," the right to marry. They argued that this unprecedented intersection of fundamental right and suspect classification took Prop 8 out of the ordinary category of a mere amendment.

Attorney General Jerry Brown, represented by Christopher Krueger from his staff, disagreed with the challengers on the amendment versus revision argument, but contended that nonetheless Prop 8 was an improper amendment, outside of the power of the people through the initiative process, on the ground that it denies a right based in Article 1, Section 1 of the Constitution, where "inalienable rights" are listed, to a group defined by a suspect classification. In effect, Brown argued that there is a subject matter limitation on the substantive rights that can be altered by an initiative amendment, based on a concept of "inalienable rights" finding support in natural law concepts predating the California Constitution.

Defending Prop 8 was Pepperdine University Law School Dean Kenneth Starr, a former federal judge and the special prosecutor in the Whitewater investigation during the 1990s. Starr’s argument was that the California Constitution establishes a regime of popular sovereignty, limited only by the federal constitution in terms of the substantive rights that can be added or deleted through the initiative amendment process. Placing his own narrow reading on the court’s prior cases concerning revision versus amendment, he argued that those cases unanimously supported the argument that in order to be a revision, a proposed amendment must make a change in the actual structure of the government. A modification of an existing constitutional right, no matter how weighty, was entirely within the province of the people to amend or repeal. His primary exhibit for this was the proposition that overruled the court and reinstated the death penalty in California.

Assuming for the moment that the dissenters in the marriage case would vote to uphold Prop 8, the key issue in this challenge was whether the four-vote majority from the marriage case, George, Kennard, and Carlos Moreno and Kathryn Mickle Werdegar, would hold together, or whether it would fracture over the issue of popular sovereignty: the right of the people of California to reverse a substantive constitutional decision of the court through the initiative process. It seemed likely from their comments that George and Kennard would have difficulty voting to reject the results of the popular initiative vote, narrow as the majority was. George as much as threw up his hands and said the court was stuck with the constitutional amendment process that they have, and that the plaintiffs’ argument was really that they thought the amendment process should be narrower, which in his view presented a political rather than a legal question.

Both Justices Moreno and Werdegar asked questions signaling their sympathy towards various arguments made by the advocates against Proposition 8, including Shannon Minter from National Center for Lesbian Rights, Raymond Marshall, representing a coalition of leading civil rights groups, Michael Maroko, representing a same-sex couple that had married last summer, and Therese Stewart, representing the municipal plaintiffs, including San Francisco. But from their fewer questions it seemed clear that Justices Marvin Baxter, Ming Chin and Carol Corrigan were unlikely to vote to strike down Proposition 8.

On the other hand, there seemed to be little sympathy from the court for Starr’s argument that upon enactment of Proposition 8, all the same-sex marriages contracted prior to its passage ceased to have any legal meaning in California. The first attorney to address or be asked about the "retroactivity" issue was Michael Maroko, representing a couple who had married, and some of the most sympathetic questions on this point actually came from Justice Baxter, who dissented in the marriage case but who voiced concern about due process, and from Justices Kennard and Corrigan. Coming back to the question later in the argument, Kennard also asked about the federal constitution’s provision forbidding the states from impairing the obligation of contracts as presenting a problem for invalidating the marriages and the various contractual arrangements that may have flowed from them.

Starr argued on this point that the court should distinguish between what he called "primary" and "secondary" retroactivity. That is, he tried to argue that what had been done was valid when it was done, but that the language of Prop 8 clearly communicated that those marriages, valid when they were performed, would no longer be "valid or recognized" after the measure was passed. The problem he faced in making this argument was the long established rule in California jurisprudence that a statute will not be held to have any retroactive effect unless its words unequivocally communicate that intention. As to this, Starr contended that the doctrine only applies to primary retroactivity, not to secondary retroactivity. Several of the justices challenged him on that point, finding that the wording of the proposition created ambiguity on the meaning of Prop 8, which was only potentially clarified by a statement in the rebuttal portion of the ballot pamphlet, "buried" in the fifth paragraph, according to Justice Kennard, suggesting that the amendment would apply to same-sex marriages wherever and whenever they were performed.

It is always possible, of course, that George and Kennard were playing devil’s advocate in their questioning and comments. This observer was not highly optimistic after watching the broadcast of the marriage argument last year, and yet the court ruled for marriage by 4-3. It is possible that George and Kennard were trying out their doubts but will ultimately resolve them against Prop 8, but that result seems unlikely, especially in the case of Kennard, who spent so much time during the argument appearing to explain her position as not being a "change" in her views about marriage, but rather a reflection of her understanding of the initiative process. Since only one member of the marriage majority would have to "defect" to change the outcome, it looks like Proposition 8 will survive, with perhaps only a slight clipping of its wings.

Comments

[Paolo]

I think this is the real problem with Prop 8:

http://www.rooftopcomedy.com/watch/TheProblemWithProp8

[Julie Shapiro]

I thought Justice Corrigan expressed some interest in the possibility of a narrow ruling, perhaps limited to cases where a suspect class is deprived of a fundamental right. Perhaps this is the way to salvage some of CA's equal protection law. Otherwise, it seems to me, Starr's extraordinarily broad argument (which he was upfront about) leaves the court little to do in this field.

[Art Leonard]

Justice Corrigan was definitely probing for a limiting principle by which to narrowly define the limits on what voters could do in an initiative amendment, but I'm not sure she got an answer she can live with.

The problem is that if you accept the proposition that voters cannot by simple amendment repeal or abridge a "fundamental right" with respect to a group defined by a "suspect classification," you have the problem of deciding what fits into those two terms, which is a question of interpretation.

Perhaps the limiting principle can be that the voters are only so restricted if the state supreme court has previously identified the right as fundamental and the classification as suspect.

But it is not enough to get Corrigan's vote. We need 4 votes to win. Corrigan and maybe Moreno and maybe Werdegar makes three. I didn't hear anything in the argument that suggests we would get Baxter or Chin or Kennard or the Chief Justice.... I hope I'm wrong, but I can't see 4 votes for striking down Prop. 8.

[Julie Shapiro]

I, too, can count three but not quite four. This actually is a bit scary to me.

If some minority of justices are willing to stand on the narrow ground--the people cannot deprive a previously identified suspect class of a previously identified fundamental right--then the majority will have to disagree with that. That means asserting that even where you have an admittedly suspect class deliberately denied an admittedly fundamental right, the court will not review the action. Isn't that functionally the end of equal protection in CA, or at least any meaningful equal protection? I rather think that the majority won't want to go that far, and so will find some way of recharacterizing what's happening here. Perhaps I even hope so. I've always been rather fond of equal protection.

[Art Leonard]

I'm fond of equal protection, too. But I think they are concerned that the constitution itself authorizes the people to amend it through the initiative process. For them to strike down Prop 8 requires them to extend their existing "revision" jurisprudence in a way that will be seen as sharply undercutting the right of the people to amend. I can't see them going for Jerry Brown's theory - it gives the Court too heavy a veto over the other branches of government - so the only way they can do this is through finding a revision, and this amendment is so unlike the others that were stricken down on revision grounds.

I think Prop 8 violates the federal Equal Protection Clause, and were not the federal courts so conservative after eight years of Bush appointments (on top of the combined 12 years of his father and Reagan), my preferred approach would have been to mount a federal constitutional challenge - like Reitman. But there we are. I don't think the California Supreme Court is going to strike Prop 8 on federal equal protection grounds - that theory wasn't raised below and wasn't briefed or argued.

[Wesli]

I personally feel that the real problem here isn't even about gays or marriage, but the initiative process itself, which I've always found suspect and wasteful. What's the point of having an elected legislature, if you're going to allow legislation from the street? Especially if that's to include popular legislation on human rights? I find it mortifying that it's legal for simple majority rule, with no ordered public debate, to decide who can get married and who cannot. Surely such important questions are the purview of a seated legislature, not that of every drunk on every corner in California. Were we to subject all human rights to this process, it would be chaos for everyone. Who's to say that the right of gay marriage should not reverse with every election? If the Court upholds Prop. 8, then what check exists in state or federal law to mitigate this madness? California has surrendered sober legislation to mob rule, and I strongly question the legality of that. The federal Constitution guarantees every state a 'republican' government. It DOES NOT guarantee full and direct democracy to the people. And as we see in this case, as warned by Madison in the Federalist Papers, that's with very good reason.

[Art Leonard]

I agree that the California initiative process makes it altogether too easy to change the constitution. I am not a Californian, so I don't have a say on this, but I would encourage those in California to consider amending their constitution to make it more difficult to amend!! The guarantee of a "republican form of government" in the constitution, to be meaningful, should require that there be a certain amount of deliberation and consensus to amend a state constitution, not an easy process involving money-fueled petitioning followed by a distorted TV campaign.