Prop 8 update

Yesterday, the California Supreme Court agreed to take up the cases challenging the validity of Proposition 8. The court announced it will not stay the proposition pending its decision, meaning that state officials cannot issue same-sex marriage licenses while this case is litigated. All briefs are due by January 31, 2009 and oral arguments will begin some time in March, meaning that the ruling will probably come in June of next year.

The court will address the following three questions:

1. Is Prop 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?
2. Does Prop 8 violate the separation-of-powers doctrine under the California Constitution?
   
3. If Prop 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Prop 8?

There are 7 Supreme Court justices on the California Supreme Court. The order to grant this hearing was signed by 6 of the justices. The one justice who voted to deny these petitions (and thus move to amend the Constitution without further delay) was Justice Kennard. This is significant, because Justice Kennard was a member of the 4-3 majority that ruled in favor of same-sex marriage earlier this year.

This issue is obviously very complicated and I know very little about California history. However, here is what I do know:

California's constitution makes an important distinction between amendments and revisions. Amendments require a 2/3 vote in both houses of the California legislature OR 50%+1 of a popular vote. On the other hand, a revision requires a 2/3 vote in both houses of the California legislature AND a 2/3 vote of the California electorate. The California Supreme Court's definition of a revision is:

"A substantial alteration of the entire constitution, or the underlying principles upon which the Constitution rests, rather than to a less extensive change in one or more of its provisions" (from the case: Amador Valley Joint Union High School District v. State Board of Equalization, 22 Cal.3d 208, regarding Prop. 13 in 1978, and Livermore v. Waite, 102 Cal. 113, regarding a legislatively-induced amendment to move the state capitol to San Jose in 1894).

Opponents of Prop. 8 will likely argue something such as: Prop. 8 substantially alters the entire California constitution because it singles out a class of people for discrimination. Proponents of Prop. 8 will point to other significant ballot propositions that were deemed amendments, including:

• Property tax limitations (Prop. 13 in 1978). Under Proposition 13, similar properties can have substantially different assessed values based solely on the dates they were purchased. The proposition was ruled an amendment, even though opponents argued violation of the Equal Protection Clause.
• Lifetime term limits (Prop. 140 in 1990). Under proposition 140, lifetime limits were placed on state lawmakers (6 years for the assembly, 8 years for the senate). The California Supreme Court ruled 6-1 that lifetime term limits were not a revision, even though it fundamentally altered the character of the Legislature (see Legislature v. Eu, 54 Cal.3d 492).
• Increased monitoring of sex offenders and child molesters (Prop. 83 in 2006). Under Proposition 83, certain fundamental rights were stripped from sex offenders. They were prohibited from living in certain areas (near schools) and were required to be electronically monitored (via GPS tracking) for life. The amendment was never challenged in court.

The second question addresses whether Prop. 8 violates the separation-of-powers doctrine of the California constitution by restricting judges' authority to protect the rights of same-sex couples. This really gets at the heart of ballot propositions, and points to a central argument made in favor of Prop. 8: that 4 liberal justices in San Francisco overturned the will of 61% of the electorate (those who voted in favor of Proposition 22 in 2000). On the one hand, the rules state that ballot propositions are legal, and that their effect should limit the government's influence. The initiative process was included in the original constitution as a way to protect the public from corporate interests (mostly railroads) who dominated California politics in the 1800s. On the other hand, the very purpose of a judicial branch is to temper public opinion, whether it's a popular majority that supports prejudicial policies, or their representatives whose legislation may discriminate against minority groups.

Finally, the court will determine if amending the constitution will nullify the 18,000 same-sex weddings performed between when the court's marriage ruling took effect in mid-June and Nov. 4. Attorney General Jerry Brown, who will defend Prop. 8 as the state's chief lawyer, contends those marriages are legal, but sponsors of the initiative disagree.

Democracy is messy. And notwithstanding the sensationalized media coverage of the post-election response to Prop. 8, the public is acting quite civilly. I applaud the parties on both sides who are right (in my mind) to legislate and litigate this issue. Our institutions are well-equipped to get this right.