Because it's virtually required of me.
The Supreme Court of California ruled 6–1 almost a week ago that Proposition 8 was a mere amendment and was ratified legally, and that it did not encroach upon the judicial authority and violate the separation of powers. But the Court also ruled unanimously that Proposition 8 did not apply retroactively and all same-sex couples who got married before Proposition 8's ratification must still be recognized by California.
Below, I summarize the disappointing opinion that Proposition 8 is only an amendment. After that, I give my take on the Court's ruling and its legal and moral implications.
The summary
The Court explains the test for finding whether an alteration to the California Constitution is an amendment or a revision:
In resolving the amendment/revision question, a court carefully must assess (1) the meaning and scope of the constitutional change at issue, and (2) the effect — both quantitative and qualitative — that the constitutional change will have on the basic governmental plan or framework embodied in the preexisting provisions of the California Constitution. (p. 6)
The difference between an amendment and a revision does not hinge "on the relative
importance of the measure but rather upon the measure's
scope" (p. 94). The Court says a change to the constitution is a revision "only if [it] embodies a constitutional change that is
so far reaching and extensive that the framers of the 1849 and 1879 Constitutions would have intended that the type of change could be proposed only by a constitutional convention" (p. 94).
According to the majority opinion, "Proposition 8 does not
entirely repeal or
abrogate the aspect of a same-sex couple's state constitutional right of privacy and due process that was analyzed in the majority opinion in the
Marriage Cases... Nor does Proposition 8
fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion" (p. 7). Rather, it
carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term "marriage" for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple's state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws. (p. 7)
In short, Proposition 8, according to the Court, is narrow in scope and does not significantly alter, let alone repeal entirely, the overall rights to privacy, due process, and equal protection that gay people and same-sex couples have. Its impact is very minor and limited. Thus, it is only an amendment.
The Court answered the charge that the people cannot use their initiative power to diminish anyone's rights, and only the revision process can do it. They said that while other state constitutions specifically restrict the people from amending certain sections or subjects, California's constitution does not. So logically, this means this restriction does not exist. "This court," they say, "would radically depart from the well-established limits of the judicial function were it to engraft such a restriction onto the Constitution in the absence of an explicit constitutional provision limiting the amendment power" (p. 11). Apparently, the fact that an alteration takes away someone's rights does not, in itself, make it a revision. In other words, all subjects are fair game, including minority rights.
The Court also addressed the similar charge in California Attorney General Jerry Brown's brief that the fundamental, "inalienable" rights in California's bill of rights cannot be abrogated by a simple majority
vote — or else they're not inalienable. The Court, of course, decided Proposition 8 does not abrogate any rights. They also said the fact that the rights listed in the California Constitution are described as "inalienable" does not "signify that such rights are totally exempt from any limitation or restriction" (p. 123). This further establishes the people's broad power to amend the constitution.
My take
After letting my thoughts brew, my feelings about this case are sharply divided between what the law says and what the law
ought to say. Of course, I still strongly believe same-sex couples have the right to marry just as opposite-sex couples do, and the law should recognize it. But it seems that the Court reached a fair conclusion that the law, under California's constitution, does not recognize it. The California Supreme Court's job is not to decide what is
right, but rather what is
legal, based on the California Constitution and the Court's own precedent. The Court explained this fact on page three of the majority opinion. Any opposition to any court ruling must clearly distinguish between the law and morality, because the two are not the same.
The Court says Proposition 8 did not
"abrogate" — or in other words, does not totally
repeal — the rights of gay people and same-sex couples, but simply "carved out a narrow exception" to those rights. The measure's only effect is to reserve the term "marriage" for opposite-sex couples, without likewise reserving any of marriage's associated
rights for opposite-sex couples. The Court's logic here appears to be that a minority's overall rights must be abrogated for such an alteration to be a revision.
I morally disagree with this legal situation. Whether or not someone's overall rights are repealed
in full is too narrow-sighted a consideration. Even a minor exception to a right that's not backed up by a compelling state interest can be too great a violation of the principle of equal protection. Access to the term "marriage" is itself a fundamental
right — and a significant right, as the Court admits throughout their opinion, such as on page
eight — a right that same-sex couples have under the principle of equal protection. Exempting same-sex couples exempts them from equal protection.
On the other hand, one argument seems fair to me, if only in a strictly legal sense. California's constitution does not explicitly restrict the people's ability to alter rights like other state constitutions do. The Massachusetts Constitution,
Article XLVIII, Part II, Section 2, and the Mississippi Constitution, Article 15,
Section 273, Subsection 5, to name the two examples the Court named, restrict the people's power to amend the constitution. But since this kind of provision is missing in California's constitution, it must not exist, as the Court reasons. The people's amendment power is very broad.
Here, I think the Court reached a fair
legal conclusion, but they have also illuminated a very grave flaw in California's constitution: It does not sufficiently protect people's fundamental rights from the whim of the transient majority. In fact, there's a gaping hole where this protection should exist. The initiative power is
too broad. The idea that the people cannot take away fundamental rights through a mere amendment passed by a simple majority is, in California, not legally
valid — but it is still
morally valid.
I have not yet looked over the entire opinion. But I presume the Court relies on precedent when it argues that "inalienable" rights aren't necessarily exempt from being diminished by a simple majority vote. If the precedent suggests this, then the Court seems to be caught in a corner. Either way, it's appalling that "inalienable" rights under the California Constitution are not in fact inalienable. This further proves that the California Constitution has a gaping hole in its protection of the rights of California's citizens.
Moreno's dissent
Though I conclude that the Court's decision is fair
legally, Justice Carlos Moreno's dissent makes me doubt myself. The dissent, which starts on page 151 of the document, makes a very reasonable point that "requiring discrimination against a minority group on the basis of a suspect classification strikes at the core of the promise of equality that underlies our California Constitution" and "places at risk the state constitutional rights of all disfavored minorities" (p. 2). The dissent says that Proposition 8 "weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority" (p. 2).
The principle of equal protection, as Justice Moreno says, "is not so much a discrete constitutional right as it is a basic constitutional principle that guides all legislation and compels the will of the majority to be tempered by justice" (p. 4). He concludes that equal protection is, "by its nature, inherently countermajoritarian. As a logical matter, it cannot depend on the will of the majority for its enforcement, for it is the will of the majority against which the equal protection clause is designed to protect" (p. 4).
The fact that people debate whether same-sex couples should be able to marry, even in California where they already have access to many of the same rights that come with marriage, suggests to Justice Moreno that Proposition 8 is not simply a limited exception to the constitutional guarantee of equal protection (p. 5). He then argues that describing it as such
fails to acknowledge the significance of the discrimination it requires. But even a narrow and limited exception to the promise of full equality strikes at the core of, and thus fundamentally alters, the guarantee of equal treatment that has pervaded the California Constitution since 1849. Promising equal treatment to some is fundamentally different from promising equal treatment to all. Promising treatment that is almost equal is fundamentally different from ensuring truly equal treatment. Granting a disfavored minority only some of the rights enjoyed by the majority is fundamentally different from recognizing, as a constitutional imperative, that they must be granted all of those rights. Granting same-sex couples all of the rights enjoyed by opposite-sex couples, except the right to call their " 'officially recognized, and protected family relationship' " [citation] a marriage, still denies them equal treatment. (pp. 6–7)
My ultimate feeling about Justice Moreno's dissent is that the California Constitution does not give his argument sufficient legal
backing — but it
should. I would like to see a constitutional amendment tailored to ratify the spirit of Justice Moreno's dissent into law.
Retroactivity
The ruling that Proposition 8 is not retroactive creates a strange, apparently contradictory legal situation. Same-sex marriage is illegal, but
individual same-sex marriages are still valid.
It's similar to what existed in Iowa until April. There, a state lower court struck down Iowa's statutory ban on same-sex marriage in late August 2007, allowing same-sex couples to apply for a marriage license. But only one same-sex couple obtained their license before the decision was stayed pending an appeal. From August 2007 until April 2009, a single same-sex couple was legally married in Iowa, but no others could marry. Likewise, an estimated 18,000 same-sex couples got married in California and remain married, but no more can get married.
Their very existence makes things sticky. They are legally married and have all the same rights and benefits other married couples do, so presumably they must have the right to divorce. But they will not be able to marry again unless their would-be spouse is of the opposite sex. Also, they stand as living examples. Opponents get to see what a marriage between two men or two women looks like, and they get to see that the sky is not falling. They also represent a key right gay and lesbian people used to have in California but have no longer. Their existence may start to change people's minds and make them decide to reinstate people's right to marry whomever they choose.
— Athelwulf
Seed Newsvine
