I really appreciated this statement from my friend, Sheila Kuehl, a former member of the California Legislature.
Prop 8 Ruling: The Measure of a Court
It had been my intention to write my next essay on Prop 1A, not Prop 8,
and to analyze poll results from voters who opposed 1A, and to go from
there to present some possible approaches to a balanced budget.
But the California Supreme Court ruled this morning that Prop 8 could,
in fact, be adopted by a simple majority of those voting in an
election. After reading the opinion, I decided to write this essay.
The entire opinion dangled from one very weak premise: that, somehow,
even though the Court insisted, in the Marriage Cases opinion last
year, that the word "marriage" was so important it couldn't be denied
without violating the State Constitution, they suddenly decided, this
year, (with the exception of Justice Moreno, writing in dissent) that
marriage is nothing but a word and that denying such a word to same sex
couples did not represent a "revision" rather than an "amendment" to
the Constitution. Below, language from the opinion (which also upheld
the validity of the 18,000 marriage performed before the election,
creating an interesting apartheid in California) and some thoughts.
The Opinion
Today, the California Supreme Court ruled on the validity of
Proposition 8, the measure adopted by California voters last November
to add a new section 7.5 to Article I of the California Constitution,
as follows: "Only marriage between a man and a woman is valid or
recognized in California".
The measure was challenged by a coalition of organizations and
individuals who favor the ability of same-sex couples to marry on three
bases:
1. That the measure adopted by the voters 52% to 48% was not a simple
amendment to the state Constitution, which may be adopted by a majority
vote, but, rather, a revision to the Constitution, which may not. The
Constitution may only be changed in one of these two ways, and, if the
change is actually a revision to the Constitution, it must either be
passed by a two-thirds vote of each house of the state Legislature and
put to a vote of the people, or proposed through a constitutional
convention and put to a vote.
2. The second challenge theorized that Prop 8 violated the separation
of powers principle because it abrogated a previous Supreme Court
decision which held that, under Equal Protection and Due Process
principles, same sex couples had the same right to marry in California
as opposite sex couples.
3. The Attorney General advanced a different theory: that the
"inalienable" right articulated by the Court in the Marriage Cases
could not be abrogated by a majority vote unless there was a compelling
state interest in doing so.
The Court rejected all three, holding that they were required to find
that the Constitution could be amended by a majority of voters in any
election, even if the amendment abrogated a fundamental right
previously articulated by the Court.
How Could They Say That?
The Court set out the legal principle that distinguishes an amendment
from a revision: That it must change the basic governmental plan or
framework of the Constitution. In deciding whether Prop 8 did, indeed,
change the Constitution at such a basic level, the Court decided it did
not, and, also, that it did not "entirely repeal or abrogate" the
rights articulated in the Marriage Cases.
This is where the Court seriously lost its way.
Marriage is Just A Word....Not
Here's what the majority opinion said, which I think is not only
seriously in error, but a cowardly about-face from their language in
the Marriage Cases, which is reprinted in the next section.
First: today's decision:
"In analyzing the constitutional challenges presently before us, we
first explain that the provision added to the California Constitution
by Proposition 8, when considered in light of the majority opinion in
the Marriage Cases, supra, 43 Cal.4th 757 (which preceded the adoption
of Proposition 8), properly must be understood as having a considerably
narrower scope and more limited effect than suggested by petitioners in
the cases before us. Contrary to petitioners' assertion, Proposition 8
does not entirely repeal or abrogate the aspect of a same-sex couple's
state constitutional right of privacy and due process that was analyzed
in the majority opinion in the Marriage Cases - that is, the
constitutional right of same-sex couples to "choose one's life partner
and enter with that person into a committed, officially recognized, and
protected family relationship that enjoys all of the constitutionally
based incidents of marriage" (Marriage Cases, supra, 43 Cal.4th at p.
829). Nor does Proposition 8 fundamentally alter the meaning and
substance of state constitutional equal protection principles as
articulated in that opinion. Instead, the measure carves out a narrow
and limited exception to these state constitutional rights, reserving
the official designation of the term "marriage" for the union of
opposite-sex couples as a matter of state constitutional law, but
leaving undisturbed all of the other extremely significant substantive
aspects of a same-sex couple's state constitutional right to establish
an officially recognized and protected family relationship and the
guarantee of equal protection of the laws."
In other words....what's the big deal about the word "marriage"?
As it turns out, quite a bit. Here's what the same Court said about it in the Marriage Cases:
First, it set out the principle it quotes in the new opinion:
"In responding to the Attorney General's argument, the majority opinion
stated that "[w]e have no occasion in this case to determine whether
the state constitutional right to marry necessarily affords all couples
the constitutional right to require the state to designate their
official family relationship a 'marriage,' " because "[w]hether or not
the name 'marriage,' in the abstract, is considered a core element of
the state constitutional right to marry, one of the core elements of
this fundamental right is the right of same-sex couples to have their
official family relationship accorded the same dignity, respect, and
stature as that accorded to all other officially recognized family
relationships.
But, then, the Court answers its own question as to the importance of the word Marriage:
"The current statutes - by drawing a distinction between the name
assigned to the family relationship available to opposite-sex couples
and the name assigned to the family relationship available to same-sex
couples, and by reserving the historic and highly respected designation
of marriage exclusively to opposite-sex couples while offering same-sex
couples only the new and unfamiliar designation of domestic partnership
_ pose a serious risk of denying the official family relationship of
same-sex couples the equal dignity and respect that is a core element
of the constitutional right to marry."
It is a distinction that makes an enormous difference and, therefore,
should be seen as a revision to the state's Equal Protection and Due
Process requirements.
By hanging its decision that Prop 8 was an amendment and not a revision
on the slim and dishonest statement that same sex couples are not
denied legal rights by denying them the "word" marriage, the Court errs.
Justice Moreno, in Dissent
Bless his heart and his mind. Here is what he says:
"The question before us is not whether the language inserted into the
California Constitution by Proposition 8 discriminates against same-sex
couples and denies them equal protection of the law; we already decided
in the Marriage Cases that it does. The question before us today is
whether such a change to one of the core values upon which our state
Constitution is founded can be accomplished by amending the
Constitution through an initiative measure placed upon the ballot by
the signatures of 8 percent of the number of persons who voted in the
last gubernatorial election and passed by a simple majority of the
voters. (Cal. Const., art. II, ยง 8.) Or is this limitation on the scope
of the equal protection clause to deny the full protection of the law
to a minority group based upon a suspect classification such a
fundamental change that it can only be accomplished by revising the
California Constitution, either through a constitutional convention or
by a measure passed by a two-thirds vote of both houses of the
Legislature and approved by the voters? (Cal. Const., art. XVIII.)
For reasons elaborated below, I conclude that requiring discrimination
against a minority group on the basis of a suspect classification
strikes at the core of the promise of equality that underlies our
California Constitution and thus "represents such a drastic and
far-reaching change in the nature and operation of our governmental
structure that it must be considered a 'revision' of the state
Constitution rather than a mere 'amendment' thereof." (Amador Valley
Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22
Cal.3d 208, 221 (Amador Valley).) The rule the majority crafts today
not only allows same-sex couples to be stripped of the right to marry
that this court recognized in the Marriage Cases, it places at risk the
state constitutional rights of all disfavored minorities. It weakens
the status of our state Constitution as a bulwark of fundamental rights
for minorities protected from the will of the majority. I therefore
dissent."
Me, too.
Sheila Kuehl
