From today’s Beyond Chron.

It’s depressing to think – after having just lost an expensive and exhausting campaign – that repealing Proposition 8 could mean going back to the ballot.  It is unfair and unjust that a slim majority of California voters took a fundamental right away from a minority, jeopardizing equal protection.  But the state Supreme Court heard oral arguments on the City Attorney’s lawsuit yesterday, and the signs were very discouraging.  Justice Joyce Kennard (who last year voted to grant marriage equality) was hostile to the case against Prop 8, and Chief Justice Ron George was skeptical.  Not that there isn’t any hope: perhaps the extreme arguments made by Prop 8 lawyer Kenneth Starr will inadvertently sway the Court into recognizing the measure’s dangerous effects.  But no one should expect the Court to repeal Prop 8.  Activists must get ready for a 2010 proposition campaign as the next available remedy, however deficient a political solution that would be.  We must learn from the colossal mistakes of the past campaign, and a new generation of activists will make it happen.

Unlike the federal Constitution – which can only be amended by a two-thirds vote of the U.S. Senate and a three-fourths vote by the state legislatures – California can change its constitution by a simple majority vote of the people.  The state distinguishes between an “amendment” and a “revision” (with the latter requiring a higher threshold), but there is very little case law to flesh out the details.  Generally speaking, an amendment tinkers around the edges of the constitution – while a revision has a more profound impact.  Prop 8 abolished a fundamental right for a protected minority group (i.e., gays and lesbians), when a core purpose of the Courts and the constitution is to protect minorities.  If that doesn’t have a profound impact, I don’t know what does – since no rights are sacred.

The legal grounds to overrule Prop 8 are sound, but that doesn’t mean the Court would do it.  Roe v. Wade didn’t just happen because an all-male Supreme Court woke up one day to discover that women have a constitutional right to choose.  A mass movement worked for years to make this inevitable.  A political movement is necessary to overturn Prop 8, giving judges the “space” to do the right thing.  Even then, the courts are an inherently conservative institution that shy away from controversy – and rely heavily on caution, tradition, legal and historical precedent.

Shannon Minter of the National Center for Lesbian Rights (NCLR) had barely started his oral argument yesterday morning, when Chief Justice Ron George interrupted.  “Are you saying the passage of Prop 8,” said George, “also took away – beyond the label of marriage – the core of the substantive rights of marriage?”  Minter gave an admirable response, but the question wasn’t a good sign.  George had written the marriage decision that argued the term ‘marriage’ was essential to enjoying its rights and dignity, but now he was parsing it out as just a word.  And he’s the “swing” vote on the Court’s 4-3 split.

Associate Justice Joyce Kennard – who had also supported the Court’s marriage decision – then piled on, maintaining an adversarial tone throughout the three-hour proceeding.  “What Prop 8 did was take away the label of marriage and its applicability to same-sex couples,” she said, “but it left intact our holding that sexual orientation is a suspect class.  Is it still your view the sky has fallen in and gays and lesbians are left with nothing?”

By far the most revealing exchange was when Deputy City Attorney Therese Stewart began to mention Kennard’s opinion last year.  Kennard cut her off, became extremely defensive and said: “in the Marriage cases, the Court was asked to do what it normally does – interpret a statute.  Here, we have a body of case law that talks about amendments and revisions.  We are talking about the power of the people – an inalienable right.”  The right of voters to change the Constitution was Kennard’s main concern throughout the arguments.  “How can the court willy nilly disregard the will of the people,” she asked.

Kennard also zeroed in on the precedent of an earlier case, where voters were allowed to restore the death penalty by passing a constitutional amendment – after courts had thrown it out as cruel and unusual punishment. “It would appear to me,” she stated, “that life is a fundamental right.”  But unlike equal protection or fundamental rights, the definition of cruel and unusual punishment is “public standards of decency” (i.e., will of the voters.)  As attorney Raymond Marshall said, “cruel and unusual punishment is unique because it’s an issue that can be decided by the people.”  He also added that voters did not single out a suspect class to receive the death penalty, and the matter still has judicial review.

Chief Justice George repeatedly focused on two points throughout the oral arguments, which don’t bode well for the result.  When Shannon Minter explained how rights cannot be taken away by mere amendments (because an amendment must be consistent with the Constitution’s general principles), George characterized that logic as a “one-way street.”  How can an amendment extend rights, he asked, but then not take them away?  He also repeatedly asked if the problem was with how California changes its constitution, and that maybe the amendment process could just be changed – a “political solution.”

As I stood in Civic Center Park to watch the proceedings on a satellite video, George’s skeptical queries – peppered with Kennard’s “questions” that were actually long-winded statements – gave me a sinking and depressing feeling that we were going to lose.

If there’s a glimmer of hope, it may be from the other side’s presentation.  Kenneth Starr (of Monica Lewinsky fame) gave the oral argument for upholding Prop 8, and blurted out a few legal points that – if drawn to their conclusion – would create an awful precedent.  By arguing that Prop 8 could not be overruled, he said: “the people are sovereign … even if unwise.  And they can tug at equality.”  In other words, no protections for minorities are sacred – as long as a majority of the voters choose to enshrine it in the constitution.

Can the Court reconcile the precedent of upholding Prop 8, with Ken Starr’s notion that we can “tug at equality”?  When asked if rolling back domestic partnerships for gay couples would also be a valid use of the initiative process, Starr said it would be an “acceptable amendment” – which may have disturbed some of the Justices.  It was clear from oral arguments the Court will not go along with Starr’s request to invalidate the 18,000 marriage licenses of same-sex couples who wed before the passage of Prop 8, but how can they recognize it as a valid amendment without incorporating Starr’s logic?

Don’t count on the Supreme Court to do the right thing – certainly not after today’s oral arguments.  If we’re going to win back marriage equality, it may have to be at the ballot box in 2010 – after an organized, grassroots effort collects signatures and then passes a constitutional amendment to repeal Prop 8.  Everyone agrees that “No on 8” ran an awful campaign, and a whole new crop of activists who felt alienated by its top-down structure are coming out of the woodwork to create a better future.  The trick is to keep that energy going.

What’s amazed me is how many groups organically sprouted out of Prop 8’s passage.  Join the Impact is still going on strong, and One Struggle, One Fight is planning a March to Sacramento at the end of the month.  The Courage Campaign is building the grassroots infrastructure we’ll need to run a successful statewide campaign, and a new group – And Marriage for All – is doing the critical outreach to communities of color.  And I’d be remiss not to acknowledge what Marriage Equality USA and Molly McKay has done for years, cultivating a network of grassroots chapter leaders through the state.

I won’t lie.  The prospect of having to wage another statewide electoral campaign for me is overwhelming, exhausting and depressing.  The lawyer in me still yearns for “justice in the courts,” with a majority of Justices concluding Prop 8 was not a proper amendment.  It would make those right-wing blowhards explode, because we’d have marriage equality in this state for good – and they could never take it away at the ballot box again with lies and distortions.  But I know that if we must go back to the voters, we’ll never walk alone.  A whole new army of allies have joined us, and this time we’re determined not to lose.

EDITOR’S NOTE: Paul Hogarth was a law school intern at Equality California during the summer of 2005, and got his J.D. from Golden Gate University in 2006. He is an attorney licensed to practice law in California.

From today’s Beyond Chron.

When SF City Attorney Dennis Herrera sued last week to overrule Proposition 8, I didn’t expect him to prevail – as much as I appreciated him trying.  As wrong as it sounds, the initiative process allows a bare majority of California voters to change our state constitution – and with other states having passed similar marriage amendments, I couldn’t see how the courts would repeal it.  But after having read Herrera’s well-written brief and done some legal research, I am now more optimistic that justice will prevail.  Prop 8 was not your typical “amendment” that merely tinkers with the California Constitution.  It was a drastic revision that deprives a “suspect class” (gays and lesbians) of a fundamental right under equal protection.  And a simple majority vote of the people is not enough to take that right away – especially when the purpose of equal protection is to shield minorities.  While other courts have upheld marriage amendments in other states, they have different Constitutions – and court rulings have changed considerably in a short period of time.  And unlike many states, California has explicitly found sexual orientation to be a “suspect class.”  If the Court overrules Prop 8, it will be a powerful affirmation for justice – capping what has been a powerful year of “change.”

It’s been hard for me to be happy about last week’s Election results – despite Barack Obama’s landslide victory, a more progressive Congress and a good night locally for San Francisco progressives.  People are angry and depressed about the passage of Proposition 8 – because unlike other states where gay couples had no marriage rights, here the right has just been stripped away.  And if there was one state where we felt we could defeat such an amendment at the ballot box, it would be California.

It doesn’t seem right that a bare majority of voters can change the Constitution by taking away peoples’ rights.  The purpose behind California’s initiative process was to allow voters to pass laws when the state legislature wouldn’t act – giving the “power of the people” a sovereign role.  But even a Constitutional amendment just requires a majority vote – with the only “protection” being a higher signature threshold than an initiative statute.  However, as Mayor Gavin Newsom said after Prop 8 passed, “protections in the Constitution have always been there to respect the rights of the minority versus popular opinion.”

Amending the federal Constitution is far more difficult than the California Constitution – as we don’t have a federal initiative process, and you need a two-thirds vote of the U.S. Senate and three-fourths of state legislatures to ratify it.  The Federal Marriage Amendment that George Bush championed in 2004 was never about amending the Constitution – because the right-wing couldn’t realistically get a supermajority to make it happen.  It was just a political ploy to get Bush re-elected.  Karl Rove knew a majority of the country doesn’t support gay marriage, making it the perfect “wedge” issue to accomplish a short-term goal.

Likewise, Massachusetts has a higher threshold for changing its Constitution.  You can’t just gather signatures and then let the people decide – the state legislature has to formally vote to put it on the ballot.  After the Massachusetts Court ruled for marriage equality in 2004, the right wing tried to launch a Constitutional amendment.  But the Democratic state legislature refused to put it on the ballot – and as more and more gay couples got married (and people saw that the sky didn’t fall), public opinion evolved to support it.

But Dennis Herrera’s lawsuit on behalf of the City and County of San Francisco – which Santa Clara and Los Angeles Counties have now joined – highlights a critical distinction in California’s Constitution that gives me hope.  Even if voters pass a Constitutional Amendment, the courts can still decide if it was merely an “amendment” – or a substantive “revision.”  And if it was a “revision,” voter approval by a simple majority is not enough – it also requires an okay by the state legislature (which probably wouldn’t happen), or a constitutional convention.  Why the distinction?  Because mere “amendments” tinker around the edges; “revisions” are far more fundamental changes.

And the Courts have thrown out such changes to the Constitution as “revisions” under the right circumstances.

In June 1990, California voters passed Proposition 115 (the Crime Victims Justice Reform Act) – a conservative “law-and-order” measure that said certain criminal defendants would not have more rights than provided by the U.S. Constitution.  Prop 115 had passed as an amendment, but the state Supreme Court called it a “revision.”  Why?  Because, in Raven v. Deukmeijan (1990), they said Prop 115 had “such a far-reaching change in our governmental framework as to amount to a qualitative constitutional revision, an undertaking beyond the reach of the initiative process.”  Prop 115 adversely affected a defendant’s right to due process, equal protection, assistance of counsel, and the standards for “cruel and unusual punishment” – which effectively made it a “revision.”

Likewise, Prop 8 is a drastic “revision” (if not moreso) because it violates equal protection for a minority group.

Last May, the California Supreme Court found that depriving same-sex couples the right to marry violated equal protection – and that LGBT people are a “suspect class.”  A “suspect class” is a group that has suffered discrimination and needs protection.  The central purpose behind equal protection is to protect unpopular minorities from a political majority who could take away their rights.  You can’t simply change the Constitution by majority vote to take away the right of gay people to marry – because that right comes from the equal protection clause.  As Herrera wrote in his brief, “without a judiciary that has the final word on equal protection, there simply is no such thing as equal protection.”

Of course, not all Constitutional amendments are “revisions.”  California’s term limits law, for example, significantly altered how long members of the legislature can stay in office – but it did not violate the foundational nature of our Constitution.  Even a Proposition that said the death penalty was not “cruel and unusual punishment” (which, like in this case, overruled a Supreme Court decision) was deemed acceptable – because one of the standards for determining what is “cruel and unusual” punishment is public opinion.  On the other hand, what do you do when the people pass an amendment that violates the fundamental rights of a minority?

What if in the aftermath of September 11th, California voted to change its Constitution to require all Muslims to travel with passes?  What if California – afraid that undocumented workers were “invading” the state – voted to expel Latino kids from school, or deny them medical treatment?  That would violate equal protection, but would it be constitutional just because proponents gathered the minimum number of signatures necessary so that it was a “constitutional amendment” (rather than a statute)?  It isn’t hard to see that, without some safeguards in place, our state’s equal protection clause can become Swiss cheese.

Granted, I was at first skeptical that Prop 8 could be found unconstitutional – because after all, a lot of other states have passed similar marriage amendments through the initiative process.  Hasn’t this been tried before, and weren’t those amendments upheld?

Yes, but the facts are distinguishable.  Alaska’s voter-approved amendment, for example, was upheld – but Alaska can’t just change its constitution by collecting signatures and having a bare majority of voters approve it.  Like Massachusetts, you need two-thirds of the legislature to put it on the ballot – which makes Alaska’s “amendments” the functional equivalent of a “revision” in California.  So it has some minimal safeguards for initiatives that California does not have.  Moreover, Alaska’s Constitution does not recognize LGBT people to be a “suspect class” – so the violation under equal protection was harder to prove.

In Oregon, however, the state Supreme Court upheld its marriage amendment – and even rejected the notion that it was a fundamental “revision” to their state’s Constitution.  But that ruling, Martinez v. Kulongoski (2008), was flawed – and our state Supreme Court would be wise not to follow it.  In Martinez, the Oregon Court almost exclusively relied on a decision from 1994 that found an anti-gay measure to be an “amendment” rather than a “revision.”  If you read the case, it actually gave the subject short shrift.

But a lot has changed in the field of gay rights since 1994 – as far as court rulings are concerned – that should influence the Prop 8 ruling.  In Romer v. Evans (1996), the U.S. Supreme Court threw out a Colorado proposition that repealed anti-discrimination laws protecting gays and lesbians – because they said hate is not a “rational basis” for violating equal protection.  In Lawrence v. Texas (2003), the U.S. Supreme Court overturned Texas’ sodomy ban – because the right to privacy extends to consensual sex (it also said you can’t make it illegal for gay people while making it legal for straights.)  The Martinez court ignored both cases.

Finally, California’s marriage ruling on May 15th was not just remarkable for granting marriage rights to same-sex couples.  The most important part of the decision was that gays and lesbians were deemed a “suspect” class – and discrimination based on sexual orientation must pass strict scrutiny.  Even if voters later passed Prop 8 to eliminate the right to marry, the other parts of the decision stand – meaning that to discriminate against gays violates equal protection of the highest order.  The Supreme Court must overrule Prop 8 – asserting that a simple vote of the people just can’t do it.

EDITOR’S NOTE: Paul Hogarth was a law school intern at Equality California during the summer of 2005, and got his J.D. from Golden Gate University in 2006. He is an attorney licensed to practice law in California.