Prop. 8 hinges on who decides: judges or voters
Posted on November 20, 2008
Filed Under Uncategorized
The central issue in the legal battle over Proposition 8 is whether the voter-approved ban on same-sex marriage is a state constitutional amendment, which can be passed by initiative, or a constitutional revision, which can’t.
From another perspective, the question is whether the scope of a minority group’s rights in California should be decided by the voters or the courts.
The state Supreme Court may decide today whether to dismiss or grant review of six lawsuits challenging Prop. 8, approved with a 52 percent majority on Nov. 4.
It’s the same court that ruled 4-3 on May 15 that the California law defining marriage as the union of a man and a woman violated fundamental rights of gays and lesbians under the state Constitution: the right of equal treatment and the right to marry the partner of one’s choice.
The legal controversy now is much different. Rather than considering the constitutionality of prohibiting same-sex marriage, the court would decide whether inserting that prohibition into the Constitution was such a basic change that it amounted to more than an amendment.
Since California voters adopted the initiative process in 1911, they have been allowed to amend their Constitution by submitting a certain number of signatures and approving the change by a majority vote. A constitutional revision, on the other hand, can be placed on the ballot only by a two-thirds vote of the Legislature or a new constitutional convention, both unlikely routes for a future Prop. 8.
Historically, the odds are against the challengers of Prop. 8′s constitutionality. The court has allowed some ground-breaking constitutional changes to become law by initiative – the Proposition 13 tax limitations, restoration of the death penalty, legislative term limits and a pro-prosecution overhaul of evidence rules – and declared only two measures to be constitutional revisions.
The last such ruling was in 1991, when the justices invalidated provisions of an initiative that would have required California courts to follow federal standards on criminal defendants’ rights rather than relying on the state Constitution to grant broader rights.
Such a change “unduly restricts judicial power … in a way which severely limits the independent force and effect of the California Constitution,” then-Chief Justice Malcolm Lucas said in a unanimous ruling.
The other time was in 1948, when the court removed from the ballot an initiative that would have changed 15 of the 21 sections of the state Constitution, covering topics that included pensions, gambling, mining and legal sales of oleomargarine.
Other state Supreme Court rulings have cited both those cases for the principle that a revision is defined either by its breadth, as in 1948, or by the importance of the change it proposes, as in 1991.
A revision, the justices said in the Prop. 13 case, must be something fundamental, a “drastic and far-reaching change in the nature and operation of our governmental structure.”
The court has never said that the repeal of a single right, like the right to marry, amounts to a constitutional revision. Opponents of Prop. 8 argue that the court should set a standard that protects a historically persecuted minority group from losing rights by majority vote.
“By deliberately stripping lesbian and gay people of a fundamental right, Proposition 8 cuts directly at the very notion of equal personhood” and leaves judges powerless to intervene, lawyers for a group of same-sex couples said in a court filing.
Although legal commentators are divided, most appear to consider the argument a longshot.
“It’s very hard to argue that this narrowly written constitutional amendment changes the fundamentals of our state government,” said Ethan Leib, a constitutional law professor at UC Hastings in San Francisco and a supporter of same-sex marriage.
The reason that California has a “flexible and inviting (constitutional) amendment procedure,” he said, “is that the people, rather than the judges, get to say what the Constitution means.”
An argument that politically unpopular minorities should be protected from majority rule would apply equally to criminal defendants, said Vikram Amar, a constitutional law professor at UC Davis. A ruling that Prop. 8 was a constitutional revision could “lead us down a slippery slope,” he said.
A dissenting view came from Joseph Grodin, a former California Supreme Court justice who teaches constitutional law at Hastings. The definition of a constitutional revision, he said, should be extended to the fundamental rights of any group that “needs protection against the majority.”
“You shouldn’t be able to take away those rights simply by putting another measure on the ballot and having a majority vote,” said Grodin, one of three justices voted out of office in 1986 in a backlash against court rulings overturning death sentences.
Another Hastings professor, Calvin Massey, invoked the court’s 1978 ruling upholding the death penalty as a reason that the Prop. 8 challenge should fail.
“I can’t think of any more fundamental right than to not have my government put me to death,” he said. “That was found to be an amendment, not a revision.”
E-mail Bob Egelko at firstname.lastname@example.org.
This article appeared on page B – 1 of the San Francisco Chronicle
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