(It’s tomorrow at 10 AM. If you’re in SF, come down to the CA Sup. Ct (400 McAllister). Otherwise, check some of these websites for information on events in your area. – promoted by Brian Leubitz)

Ready for a nervous long weekend?  The California Supreme Court just announced that it will publish its decision in the Prop 8 case Tuesday morning at 10:00 a.m. 

If you want to be the first to read the opinion when it's issued, you can get a copy straight from the horse's mouth here or here.  Otherwise, I'm sure there will be plenty of analysis and commentary here on Tuesday morning.

A bunch of pro-equality groups are organizing Day of Decision celebrations/protests around the state and around the country.  (I really, really wish they would stop referring to the event as “D-Day”).  The events will happen Tuesday night.  Check out the location of the celebration/protest in your area here.  Also, check out the Meet in the Middle 4 Equality event which will take place at Fresno City Hall at 1:00 p.m. next Saturday (May 30th).  That's the same day as the National Center for Lesbian Rights' 30th Anniversary Celebration in San Francisco.  NCLR has done so much to advance marriage equality (Shannon Minter rocks!) that it would be a shame to miss the NCLR Celebration on Saturday night.  But it's only a 3 1/2 hour drive from Fresno to SF, so if you plan it right, you can have a fun-packed day of celebration (fingers crossed).

For those of you who want a refresher of the legal arguments in the case, I have reposted on the flip an article that I published in the California Litigation Reporter, a monthly publication of the Continuing Education arm of the California State Bar.  If nothing else, it will put you to sleep on these four nervous nights we have ahead.  Also, Melissa Griffin (Sweet Melissa) has much more lively analysis of the oral argument and provides her counting-of-the-noses predictions here. We also had a lively discussion of tea-leaf-reading and predictions earlier this week on Calitics here.

So now join me, Brian L., and the pugs as we pace back and forth in the living room for three long days. . . .

Overstepping The Limited Power to Amend the Constitution: The Argument Against Proposition 8

Introduction

Imagine if a majority of the voters passed an initiative that amended the California Constitution to prohibit people of a minority faith from practicing their religion. We would not stand for this change because the fundamental purpose of our Constitution is to protect minority rights from being trampled by the majority. Proposition 8 (Cal Const art I, §7.5) is similarly flawed. Passed by the voters in November, Proposition 8 eliminates the fundamental constitutional right of gay men and lesbian women to marry the person of their choosing. It depends on the premise that a simple majority can pass an initiative that strips a protected minority group of its fundamental constitutional rights.

Fortunately, our Constitution provides an express safeguard against this type of change. Because of the permanent and abiding nature of our Constitution, the power to change it through the initiative process is limited. An initiative may effect a change only if it is “within the lines” of the existing Constitution. Livermore v Waite (1894) 102 C 113, 118, 36 P 424. On the other hand, it may not “substantially alter the purpose” of the Constitution or attempt to “attain objectives clearly beyond the lines of the Constitution as now cast.” McFadden v Jordan (1948) 32 C2d 330, 350, 196 P2d 787. This article argues that, because Proposition 8 falls into the latter category, it oversteps the limited power to amend the Constitution through the initiative process.

 

Setting The Stage

Until recently, California’s laws expressly limited marriage to opposite-sex couples. Fam C §§300, 308.5. San Francisco Mayor Gavin Newsom openly defied these laws in February 2004 when he directed the county clerk to begin issuing marriage licenses to all couples, regardless of gender or sexual orientation. The ensuing legal battle culminated in May 2008 when the California Supreme Court sided with Mayor Newsom and held that gay men and lesbian women are entitled to enjoy the basic and inalienable constitutional right to marry the person of their choosing. In re Marriage Cases (2008) 43 C4th 757, 829, 76 CR3d 683. Laws that deny them this right violate California Constitution’s guarantee of equal protection. 43 C4th at 855.

Proposition 8 is a ballot initiative that attempts to reverse the court’s decision in Marriage Cases and eliminate the right of gay men and lesbian women to marry. It amends California’s Constitution to state that: “Only marriage between a man and a woman is valid or recognized in California.” Cal Const art I, §7.5. In last November’s election, the voters approved Proposition 8, 52 percent to 48 percent.

The day after the election, recently-married couples, together with civil rights groups and several cities and counties, filed petitions challenging Proposition 8. The petitions requested the supreme court to issue a writ of mandate directing state officials to refrain from implementing, enforcing, or applying Proposition 8. The central argument advanced by the petitioners is that Proposition 8 oversteps the power of the people to amend the Constitution. This power is limited by Article XVIII of the California Constitution, and extends only to making changes that are within the lines of the existing Constitution. Changes that affect the underlying principles on which the Constitution is based are referred to as “revisions.” A valid constitutional revision must undergo a rigorous and deliberative process and it cannot be approved through the initiative process.

The California Supreme Court agreed to hear three of the petitions and it requested that the parties brief three issues: First, is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to the California Constitution? Second, does Proposition 8 violate the separation of powers doctrine under the California Constitution? Third, if Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

This article focuses on the primary issue presented by the petitions before the Supreme Court: that Proposition 8 is invalid because it oversteps the limited power to amend the constitution through the initiative process.

The Limited Power to Amend The Constitution

Although the power of the electorate to amend our Constitution by ballot initiative is broad and deserving of jealous protection, it is far from absolute. A simple majority of voters may amend the Constitution through the initiative process. On the other hand, a constitutional revision is valid only if it undergoes a process that is much more deliberative than a political campaign. Amador Valley Joint Union High Sch. Dist. v State Bd. of Equalization (1978) 22 C3d 208, 221, 149 CR 239. A constitutional revision is valid if the legislature approves the change by a two-thirds vote in both houses and the voters ratify the change proposed by the legislature. Cal Const, art XVIII, §1. Alternatively, a revision is valid if the legislature, by two-thirds vote in both houses, convenes a constitutional convention and the voters ratify a change that is proposed by the convention. Cal Const, art XVIII, § 2. These are the only two ways that a constitutional revision may be validly effected. Because the initiative process may not be used to revise the Constitution, Proposition 8 is not valid if it is a revision.

The Amendment/Revision Distinction

Whether Proposition 8 is a revision or an amendment depends on whether or not it changes the underlying principles in the existing Constitution.

In the first case to discuss the distinction between an amendment and a revision, the supreme court recognized: “The very term ‘constitution’ implies an instrument of a permanent and abiding nature, and the provisions contained therein for its revision indicate the will of the people that the underlying principles upon which it rests, as well as the substantial entirety of the instrument, shall be of a like permanent and abiding nature.” Livermore v Waite (1894) 102 C 113, 118, 36 P 424. The court recognized that the process necessary to effect a revision — a constitutional convention — ensures that “the entire sovereignty … is represented.” 102 C at 117. Because the entire sovereignty is represented at a constitutional convention, the constitutional changes that can be effected through that process are “freed from any limitations other than those contained in the constitution of the United States.” Livermore v Waite, supra. Conversely, the entire sovereignty is not represented in the process to amend the Constitution. As a result, the power to amend the Constitution is limited. In defining this limitation, the court in Livermore said that “the term ‘amendment’ implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.” 102 C at 118 (emphasis added).

The power to pass laws and constitutional amendments — but not constitutional revisions — through the initiative process was created in 1911, 17 years after the supreme court decided Livermore. The first case to discuss the amendment/revision distinction in the context of an initiative involved a proposed amendment that would have added over 21,000 words to the existing Constitution and affected 15 of its 25 articles. McFadden v Jordan (1948) 32 C2d 330, 345, 196 P2d 787. Addressing this proposed amendment, the supreme court first held that the same definitions and analysis articulated in Livermore apply to constitutional amendments enacted through the initiative process. 32 C2d at 332. Applying these definitions, the court found that the proposed amendment far exceeded the limited power to amend the Constitution through the initiative process. The court held that the proposed amendment was an improper revision because its effect “would be to substantially alter the purpose and to attain objectives clearly beyond the lines of the Constitution as now cast.” 32 C2d at 350.

Since McFadden, the court consistently has applied the Livermore standard and has held that changes to the underlying principles of our Constitution must be stricken as invalid revisions. Of course, a change does not necessarily need to be as complex or verbose as the one in McFadden to be deemed a revision. Even a simple and concise change should be deemed an improper revision if it makes “far reaching changes in the nature of our basic governmental plan.” Amador Valley Joint Union High Sch. Dist. v State Bd. of Equalization (1978) 22 C3d 208, 223, 149 CR 239. A constitutional change should be deemed a revision if it is either quantitatively or qualitatively substantial. Amador Valley Joint Union High Sch. Dist. v State Bd. of Equalization, supra.

Proposition 115 (also known as the Crime Victims’ Justice Reform Act), passed by the voters in 1990, is an example of a simple yet substantial change that exceeded the limited power to amend. It changed the California Constitution to expressly limit the protections it afforded to criminal defendants to those provided by the federal Constitution. Raven v Deukmejian (1990) 52 C3d 336, 276 CR 326. This amendment conflicted directly with the preexisting state Constitution, which stated: “Rights guaranteed by this Constitution are not dependant on those guaranteed by the United States Constitution.” Cal Const, art I, §24. The Supreme Court found that this change was an improper revision. 52 C3d at 355. By limiting the protections in our state Constitution to those in the federal Constitution, Proposition 115 “directly contradicts the well-established jurisprudential principle that, ‘The judiciary, from the very nature of its powers and means given it by the Constitution, must possess the right to construe the Constitution in the last resort.’” 52 C3d at 354, quoting Nogues v Douglass (1858) 7 C 65, 69. The court held that, although it did not constitute a quantitatively substantial change like the one in McFadden, Proposition 115 “substantially alters the preexisting constitutional scheme or framework heretofore extensively and repeatedly used by courts in interpreting and enforcing state constitutional protections.” Raven v Deukmejian, supra.

Of the seven ballot initiatives that have been challenged as improper revisions, the supreme court has upheld five as legitimate amendments. For example, Proposition 140, passed by the voters in 1990, limited the terms of state legislators and constitutional officers and limited legislators’ retirement benefits and administrative budgets. Legislature v Eu (1991) 54 C3d 492, 501, 286 CR 283. The court found that the new constitutional restrictions “may affect and alter the particular legislators and staff who participate in the legislative process, but the process itself should remain essentially as previously contemplated by our Constitution.” 54 C3d at 508. In contrast to the change in Raven, “Proposition 140 on its face does not affect either the structure or the foundational powers of the Legislature, which remains free to enact whatever laws it deems appropriate.” 54 C3d at 509.

Another example of a permissible constitutional amendment is one that defines “cruel or unusual punishment.” In 1972, the voters approved Proposition 17, which overruled an earlier California Supreme Court decision and stated that the death penalty “shall not be deemed to be, or to constitute, the infliction of cruel or unusual punishments.” People v Frierson (1979) 25 C3d 142, 173, 158 CR 281. Given the context of how courts interpret the term “cruel or unusual punishment,” this change was easily “within the lines” of the preexisting Constitution. Our courts recognize that determining whether or not a punishment is cruel or unusual “is not a static concept.” See People v Moon (2005) 37 C4th 1, 47, 32 CR3d 894. Instead, the courts have “established the propriety and affirmed the necessity of referring to ‘the evolving standards of decency that mark the progress of a maturing society’ to determine which punishments are so disproportionate as to be cruel and unusual.” People v Moon, supra, quoting Roper v Simmons (2005) 543 US 551, 568, 161 L Ed 2d 1, 125 S Ct 1183. Allowing the population to define what constitutes a “cruel or unusual” punishment is thus fully consistent with the preexisting constitutional structure. Proposition 17 also left fully intact the exclusive constitutional power of the judiciary to review death sentences “to assure that each sentence has been properly and legally imposed and to safeguard against arbitrary or disproportionate treatment.” People v Frierson (1979) 25 C3d 142, 187, 158 CR 281.

In the 130 years since California’s 1879 Constitution was adopted, the California Supreme Court has decided only nine cases involving the distinction between a revision and an amendment. This area of the law is, therefore, far from fully developed. Importantly, no case has ever raised the issue presented here: whether a simple majority of voters can strip a constitutionally-protected minority of fundamental civil rights. But as is demonstrated below, the guidelines that the court has set forth can only lead to the conclusion that Proposition 8 is an improper revision.

Proposition 8 Substantially Changes Our Constitution

The Right to Marry The express purpose of Proposition 8 is to take away a person’s right to marry someone of the same gender. The implicated right —- the right to marry the person of one’s choosing —- is protected by California’s Constitution as fundamental and inalienable.

Although it is not an expressly enumerated in our Constitution, the right to marry is embodied in the right to privacy and it is a component of the right to liberty protected by the due process clause. In re Marriage Cases (2008) 43 C4th 757, 810, 76 CR3d 683. The right to marry is so “deeply rooted in the history and tradition of our state and nation” that the supreme court held that it is “one of the basic, inalienable civil rights guaranteed to an individual by the California Constitution.” 43 C4th at 824, 782, citing Perez v Sharp (1948) 32 C2d 711, 198 P2d 17.

As with many other constitutional rights, the meaning and scope of the right to marry has evolved over time. This is because tradition alone “generally has not been viewed as a sufficient justification for perpetuating, without examination, the restriction or denial of a fundamental constitutional right.” In re Marriage Cases, 43 C4th at 820 (emphasis in original). For example, before 1948, California’s anti-miscegenation statute provided that “marriages of white persons with negroes, Mongolians, members of the Malay race, or mulattoes are illegal and void.” Former CC §60. In a landmark decision in 1948, the California Supreme Court held that “Since the right to marry is the right to join in marriage with the person of one's choice, a statute that prohibits an individual from marrying a member of a race other than his own restricts the scope of his choice and thereby restricts his right to marry.” Perez v Sharp (1948) 32 C2d 711, 715, 198 P2d 17.

Sixty years after its decision in Perez, the California Supreme Court extended the constitutional right to marry to same-sex couples. The court held that “the California Constitution properly must be interpreted to guarantee this basic civil right [to marry] to all individuals and couples, without regard to their sexual orientation.” In re Marriage Cases, 43 C4th at 782. In so holding, the court stressed that it was not creating a new right to same-sex marriage. Instead, the court recognized that same-sex couples are entitled to the existing fundamental right to marry that is protected by the inalienable right to privacy and due process in the California Constitution.

Equal Protection

Of course, Proposition 8 does not deny all Californians the right to marry. Instead, it targets gay men and lesbian women, a constitutionally-protected class of people who are entitled to heightened level of protection. 43 C4th at 784 (holding that sexual orientation is “a constitutionally suspect basis upon which to impose differential treatment”). By denying a fundamental and inalienable right to one class of citizens while preserving it for another, Proposition 8 completely eliminates the principle of equal protection on which our Constitution was built.

Adopted in 1849, a year before Congress recognized California as a state, our first Constitution embraced the principle that all citizens were entitled to equal protection of the law. For example, it guaranteed that “All men” have the same basic and inalienable rights. 1849 Cal Const, art I, §1. It also mandated that “All laws of a general nature shall have a uniform operation.” 1849 Cal Const, art I, §11. The meaning of this provision “is that the legislature shall not grant to any citizen or class of citizens privileges or immunities which upon the same terms shall not equally belong to all citizens.” Treadwell, The Constitution of the State of California 18 (1911) (citing, e.g., Brooks v Hyde (1869) 37 C 366; Ex parte Smith (1969) 38 C 702.

The foundational principle of equality has endured and our present Constitution is even more explicit in its protection. The Declaration of Rights, set forth in Article I of our present Constitution, expressly guarantees that all people have the right to equal protection of the laws. Cal Const art I, §7(a). Like Article I, §21 of the 1879 Constitution, the Declaration of Rights in our present Constitution mandates: “A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens.” Cal Const art I, § 7(b).

The guarantee that all people are entitled to equal protection of the laws is based on the basic understanding that individual liberties are best protected when all people must live by the same laws. As Justice Scalia has said, “Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me.” Cruzan v Director, Mo. Dep’t of Health (1990) 497 US 261, 300,111 L Ed 2d 224, 110 S Ct 2841 (Scalia, J., concurring).

At times when political majorities have attempted to take away rights from disfavored groups, our supreme court has enforced the equal protection clause. Enforcing the equal protection guarantee in the federal Constitution, the California Supreme Court overturned a state constitutional amendment that allowed property owners to refuse to sell or rent to a person on any basis, including race, religion, and national origin. Mulkey v Reitman (1966) 64 C2d 529, 50 CR 881. The court looked to the same equal protection guarantee when it overturned laws that prohibited Japanese citizens from owning land. Fujii v State (1952) 38 C2d 718, 242 P2d 617. Similarly, when the court overturned a law that prohibited women from working as bartenders, it did so based on the equal protection guarantees in our state and federal Constitutions. Sail’er Inn, Inc. v Kirby (1971) 5 C3d 1, 95 CR 329. These are just a few examples of the need throughout history for the court to step in and prevent a group of people from being oppressed by the majority.

Separation of Powers

In addition to obstructing the fundamental right to marry and eliminating the guarantee of equal protection, Proposition 8 also violates the separation of powers doctrine. The power of the people to pass laws and constitutional amendments through the initiative process is part of, and is limited by, the power of the legislature under the Constitution. Professional Eng’rs in Cal. Gov’t v Kempton (2007) 40 C4th 1016, 1045, 56 CR3d 814; Marine Forests Soc’y v California Coastal Comm’n (2005) 36 C4th 1, 35, 30 CR3d 30. Consequently, the separation of powers doctrine prohibits the electorate, in passing Proposition 8, from interfering with one of the powers occupied exclusively by the judicial branch. Marine Forests Soc’y, supra.

Among the protections provided by the separation of powers doctrine, “probably the most fundamental lies in the power of the courts . . . to preserve constitutional rights, whether of individual or minority, from obliteration by the majority.” Bixby v Pierno (1971) 4 C3d 130, 141, 93 CR 234. This is because of the fragile nature of the equal protection guarantee. After all, the only reason equality exists as something more than words on parchment is because our courts have the power to enforce it. If the legislative branch —- acting through the initiative power in passing Proposition 8 —- succeeded in wresting this power from the courts, it will have effectively abolished the equal protection guarantee itself. Consequently, the separation of powers clause prohibits the electorate from using the initiative power to strip the courts of its central power to enforce the constitutional guarantee of equal protection.

Proposition 8 Oversteps The Limited Power To Amend

To hold that Proposition 8 is valid, the supreme court must adopt a new and radically different constitutional rule: that a bare majority of voters have the power to strip away fundamental and inalienable constitutional rights from a disfavored minority. It also must hold that the legislative branch -— acting through the initiative process —- has the power to strip the courts of their exclusive right to protect minorities from having their rights obliterated by the majority. These changes represent seismic shifts in the foundational principles of our existing Constitution that cannot be enacted through a constitutional amendment.

Constitutional amendments, after all, can only make changes that are “within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.” Livermore v Waite (1894) 102 C 113, 118, 36 P 424. The court recognized in Livermore that our Constitution is “an instrument of a permanent and abiding nature.” Livermore v Waite, supra. By requiring that constitutional revisions undergo a rigorous and deliberative process, the people expressed their will that “the underlying principles upon which [the Constitution] rests, as well as the substantial entirety of the instrument, shall be of a like permanent and abiding nature.” Livermore v Waite, supra.

Conclusion

Proposition 8 far exceeds the boundaries of our current Constitution in the three important ways discussed above. First, it alienates the fundamental and inalienable constitutional rights to privacy and due process that comprise the right to marry. Second, it obliterates the foundational principle of equal protection and imposes a new rule that a bare majority can decide to deny fundamental civil rights to unpopular minorities. Third, it violates the separation of powers clause by stripping the judicial branch of its core constitutional power to prevent the majority from obliterating constitutional rights.

Rather than carrying out the purpose of our existing Constitution, as Livermore requires of an amendment, Proposition 8’s effect is to “substantially alter the purpose and to attain objectives clearly beyond the lines of the Constitution as now cast.” McFadden v Jordan (1948) 32 C2d 330, 350, 196 P2d 787. This is the type of constitutional change that must be decided in the rigorous and deliberative process required to revise the Constitution, rather than approved by simple majority in a political campaign for a ballot initiative.