The future of proposition 8

Some Californians are suing to overturn proposition 8.

The primary argument for the lawsuit is a little bit technical. Under California law, voters may pass an “amendment” to the California state constitution with a simple majority. But a “revision” of the constitution requires the agreement of two-thirds of the legislature, plus the majority of voters.

Proposition 8 was passed by the voters, but not by the legislature (nor would 2/3 of the California legislature, which favors marraige equality, vote to support prop 8). If prop 8 just “amends” the constitution, then that’s legitimate. But if prop 8 “revises” the constitution, then it’s not valid law.

So what’s the difference between an amendment and a revision? It’s sort of subjective. Back in 1978, here’s what the California Supreme Court said (quoted by Professor Bainbridge):

Taken together our Livermore and McFadden decisions mandate that our analysis in determining whether a particular constitutional enactment is a revision or an amendment must be both quantitative and qualitative in nature. For example, an enactment which is so extensive in its provisions as to change directly the ‘substantial entirety‘ of the Constitution by the deletion or alteration of numerous existing provisions may well constitute a revision thereof. However, even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also. In illustration, the parties herein appear to agree that an enactment which purported to vest all judicial power in the Legislature would amount to a revision without regard either to the length or complexity of the measure or the number of existing articles or sections affected by such change.

So is proposition 8 a revision, and thus invalid? Eugene Volokh (who opposed proposition 8) argues that “The proposal to allow only opposite-sex marriages is likely to be found to be only an amendment, not a revision” because it is a single, narrow law, rather than a broad and complex revision to large sections of the California constitution. The Alaska Supreme Court, faced with more or less the same question, ruled that “Few sections of the Constitution are directly affected, and nothing in the proposal will ‘necessarily or inevitably alter the basic governmental framework’ of the Constitution.”

Professor Bainbridge agrees:

Having said that, however, Prop 8 doesn’t add anything near 21,000 words to the state constitution. It affects 1 section of 1 article, not “at least 15.” It doesn’t create a new state agency outside the scope of ordinary checks and balances. It gave the people an up or down vote on a single issue. And it falls far short of effecting such a fundamental change as reallocating the judicial role to the legislature.

On the other hand, Dale Carpenter thinks the court could see it as a revision (although he doesn’t predict they will):

Consider a couple of analogies. (1) Suppose a majority of the people became concerned about the growing political influence of Mormons, exhibited by what the majority regarded as their huge donations to political campaigns, and decided to alter the state constitution to deny Mormons, and Mormons alone, the right to make contributions to ballot fights. Aside from the obvious federal constitutional issues involved, would the change be considered an “amendment” or a “revision” under the California constitution? (2) Suppose a majority of the people decided that blacks were not taking the responsibilities of marriage very seriously, exhibited by what the majority regarded as high illegitimacy rates, high divorce rates, and rampant cohabitation and promiscuity, and decided to alter the state constitution to deny to blacks, and blacks alone, the fundamental right to marry? Again putting aside the invalidity of such a change under the federal constitution, would the change be an “amendment” or a “revision” under the California constitution?

Under the Bainbridge/Volokh analysis, wouldn’t these proposed changes be amendments, requiring only approval by a bare majority of the state’s voters? Neither involves extensive changes to the state constitution, or numerous or profound changes to the basic structure of California government, or an alteration of the judicial role. Each involves the denial of a fundamental right to a protected class, just as Prop 8 does (again, according to the California Supreme Court). If Prop 8 is different, how is it different? Just because gays are involved? Under California law, whether you agree or not, gays stand on the same plane as any other protected class. Discrimination against them is as suspect as it is against blacks or Mormons. And also under California law, marriage is as fundamental for them as it is for blacks and as important for them as political speech is for Mormons.

It’s just a thought experiment, of course, since we would never dream of amending a constitution to make such outrageous changes eliminating the important rights of racial and religious minorities. But if the question were presented, it’s not obvious to me that the issue would be resolved by counting the words in the hypothetical amendments, tallying the number of constitutional provisions affected, or asking simply whether the judicial role had been compromised. It’s plausible that the courts would say these are “revisions” requiring approval by two-thirds of each house of the state legislature followed by a majority vote at the ballot box.

In the comments of The Faculty Lounge, “Jackson” puts it succinctly:

From my perspective, Prop 8 did more than change the scope of a fundamental right (equal protection), as you assert here. By stripping a fundamental right solely from one (suspect) class off people, Prop 8 has essentially removed the equal protection clause from the California Constitution entirely. It allows any right to be stripped from any group based on a simple majority vote. The additional procedural protections of the revision process would amount to nothing if such a drastic reframing of the basic foundational tenets upon which the California Consitution is based could be changed on a simple majority vote. If Prop 8 is not a revision, it is unclear when, if ever, the revision clause would apply.

I think that Jackson, and Carpenter, make a stronger argument. A fundamental change like this should require the more deliberative process of a Constitutional revision.

But that may not matter. I think the judges on the California Supreme will take the politically easier route, which is finding that proposition 8 was an amendment, not a revision, and so is now good law and part of the California constitution.

If so, the next step is a proposition asking the voters to remove proposition 8 from the Constitution — maybe as soon as 2010. If so, I think it’ll have a chance of passing. In 2008, too many of us who favor marriage equality (me included) thought for too long that prop 8 was certain to be defeated (those early polls showing prop 8 losing by a solid margin were, as it turned out, deadly). Plus the presidential election was sucking up almost all the progressive energy in the country. And pretty much everyone agrees that “no on 8″ ran a mediocre campaign. None of those factors would have to be the same in 2010.

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10 Responses to The future of proposition 8

  1. 1
    Radfem says:

    The first polls were not long after the court decision where there was this sense of that it couldn’t fail. Even here. I remember someone telling me on one of these blog postings that my concerns about it passing weren’t warranted because California had changed so much but being here as a voter for years, I’ve seen how these political campaigns work, the strategies used and actually, there was a proposition a year or so ago involving the reforming of the “three strikes” law to address the issue of sending petty thieves (as petty theft can be a felony no matter the dollar amount under the three-strikes law and counted as a third strike). That initiative looked good for passing in the beginning but the polls started to narrow and a similar blatantly lying and false campaign was sent out with very little challenge to it, even the governor went out to different cities to participate in that and it narrowly failed.

    They were saying murderers and rapists would be running around free conveniently forgetting the truth in sentencing law for murderers so that consequently “three strikes” applies to relatively few murderers and that it actually tightened the law on sex offenders especially violent ones in the language.

    But who reads that language anyway (which for that initiative was lengthy)? Who listens to what’s bombarding them on the radio, television and other media outlets?

    Having worked on local ballot initiatives, I think also when you’re supporting one, you’re working with a dynamic that sometimes not always favors your strategy whereas being in opposition, you might be playing catch up and if you’re leading early on, you might coast a bit.

  2. 2
    Radfem says:

    Here’s a side note.

    Last night at our local community college, the play The Laramie Project was at the campus theater and Rev. Fred Phelps and his ilk were planning to protest against it. So there were about 200-300 counter demonstrators there. As it turned out, Phelps and his peeps were no shows.

  3. 3
    nobody.really says:

    For rulings overturning referendums for violating the equal protection clause, see Reitman v. Mulkey, 387 U.S. 369 (1967) (“[T]he intent of [the initiative] was to authorize … discrimination … and to create a constitutional right to [discriminate]. * * * [Since the referendum, t]he right to discriminate … was now embodied in the State’s basic charter . . . . Those practicing … discriminations need no longer rely solely on their personal choice. They could now invoke express constitutional authority….”).

    Romer v. Evans 517 U.S. 620 (1996) (“[A] law must bear a rational relationship to a legitimate governmental purpose…. [I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare … desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”)

    Housing and Redevelopment Auth. v. City of Minneapolis, 198 N.W.2d 531 (Minn. 1972).

    Holmes v. Leadbetter, 294 F.Supp. 991 (E.D.Mich.1968).

    Otey v. Common Council of City of Milwaukee
    , 281 F.Supp. 264 (E.D.Wis.1968) (“[T]he principle of judicial non-interference [in elections] is one of prudence, not of power.”)

    As James Madison said, ‘Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents. This is a truth of great importance, but not yet sufficiently attended to…. ” (5 Writings of James Madison 272 (Hunt ed. 1904)).

  4. 4
    PG says:

    Yeah, but there’s a difference between overturning a referendum because it violates equal protection, and overturning it because it would revise the constitution. For example, if the law in Romer had been passed by the legislature instead of by referendum, it still would have violating the U.S. Constitution.

  5. 5
    hf says:

    Why 2010? California will probably have at least one suitable election in 2009. Do the rules forbid bringing it to the ballot then?

  6. 6
    hf says:

    One good ad plus a little time to expose the other side’s lies should reverse the outcome, and Arkansas has made it easier for us to find the story we need.

  7. 7
    Radfem says:

    I think 2010 the next state-wide election and they’ll probably pick doing it then during a special election. Turnout will be higher then. Also, there’s the time process of getting on the ballot to consider as well as possibly waiting until after the court rules.

  8. 8
    hf says:

    We don’t want to wait for the court, that’s a fucking idiotic strategy. Like I said, the other side (in CA) doesn’t have a chance in Hell if we make one good ad featuring a child hurt by the ban on same-sex marriage. But if the court rules in our favor, there goes the best opportunity we have to crush the other side’s standard arguments.

  9. 9
    PG says:

    “Like I said, the other side (in CA) doesn’t have a chance in Hell if we make one good ad featuring a child hurt by the ban on same-sex marriage.”

    Except it’s going to be hard to make an ad where a child is hurt by her parents’ being in a CA domestic partnership rather than a CA same-sex marriage. They’re functionally very similar so long as the federal government refuses to recognize either.

  10. 10
    hf says:

    So? Point out repeatedly that if California has same-sex marriage, Arkansas will eventually have it as well.* Make the opposition think this means we plan to legalize same-sex marriage through the US Supreme Court. Oh no, don’t throw me in the legal-disagreement-vs-small-child briar patch!

    Do I have to find this girl myself? Again, there is no chance we could fail to get a bit more than 2% of CA voters changing to our side if we expose the lie of “protecting children”.

    *This would happen at some point anyway, but the bigots don’t know that. And it would probably take longer.