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.