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Sunday, November 09, 2008

The Legal Challenge to Proposition 8

My first inclination to a legal challenge of constitutional amendment is skepticism. But the more I look into both the court ruling by the California Supreme Court and the issue of the changing the California's Constitution the more I recognize that the opponents of Proposition 8 not only have a strong case, they are very likely to win.

The genesis for this belief is that court's ruling itself which is far stronger than a typical court ruling. They are argued two things. First that same-sex couples had a fundamental right to marry and second that the underlying law violated the state's equal protection clause.

Here is the first part of the ruling:
"We conclude that, under this state’s Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process."
Now, what has happened is that the voters by a majority have supposedly altered the constitution to deal with that issue.

But one of the questions is whether the voters can do that by majority vote. For instance, forget the federal constitution and federal courts for a moment, could the voters of California pass a constitutional amendment to outlaw freedom of speech in California? Or could they pass a constitutional amendment to outlaw miscegenation? Many legal experts believe they could not do that. And because of the how the California Supreme Court ruled in May, they would have to essentially do that for the majority on the Supreme Court set the bar that high by ruling the right to marry "substantive legal rights."

McFadden v. Jordan (1948) 32 Cal.2d 330, 333 ruled:
“The initiative power reserved by the people by amendment to the Constitution in 1911 (art. IV, s 1) applies only to the proposing and the adopting or rejecting of ‘laws and amendments to the Constitution’ and does not purport to extend to a constitutional revision.”
From several articles I have read, there is a substantial amount of case law on the issue of a revision not being able to be placed on the ballot by the signature process. Some of that case law is pretty recent. For instance, the California Supreme Court ruled in 1990, that voters can propose amendments to the Constitution that will be placed on the ballot if the requisite number of signatures are obtained, but they may not propose constitutional revisions. A constitutional revision requires a two-thirds vote of the Legislature to reach the ballot. That did not occur.

That leaves open the interpretation as to whether this is in fact a constitutional revision.

A 1990 court ruling suggests that it might be: “the revision provision is based on the principle that ‘comprehensive changes’ to the Constitution require more formality, discussion and deliberation than is available through the initiative process."

Given the scope of the courts ruling, to this layman, it would appear that any change to the same-sex marriage law would in fact constitute such a revision to the constitution.

And let us think about that for a second. From the state's perspective, do you believe that the voters by the signature and initiative process could overturn constitutional protections for free speech or outlawing anti-miscegenation laws? That seems doubtful. Now you may not agree with the Supreme Court ruling, but right now that is the law of the land and their interpretation of the right to gay marriage clearly rises to that level. Given the strength of that ruling it seems difficult to imagine that the same court would allow this constitutional amendment to stand.

However, just in case, the challengers will be arguing even if Proposition 8 deals with the marriage portion of the Supreme Court's ruling, it does not address the equal protection portion of the Supreme Court's ruling. The challenge would assert that the state constitution is now in conflict with itself--part saying that same-sex marriage is illegal and the other part says that same banning sex marriage is in violation of the equal protection clause.

The interesting question for now will be, will the courts stay the implementation of the amendment while the legal process plays out and what happens to the people already married.

The backers of Proposition 8 believe that the law would invalidate the marriages performed between June 16 and Election Day. Attorney General Jerry Brown disagrees.

The San Francisco Chronicle reports:
"And Attorney General Jerry Brown, who represents the state in court, said he would defend the legality of the thousands of same-sex marriages conducted in the 5 1/2 months leading up to election day - even though sponsors of Prop. 8 say the measure was intended to invalidate those marriages. That controversy is also likely to end up before California's high court and could reach the U.S. Supreme Court.

"It is my belief that the courts will hold that these same-sex marriages entered into are valid," Brown said in a statement. He said he would defend Prop. 8 against legal challenges, but would also defend "the marriages contracted during the time that same-sex marriage was the law in California."
Roughly 18,000 same-sex couples were married in California between June 16 and November 4, 2008. It will be interesting to see how this plays out, unfortunately for those individuals, a very harrowing time, no doubt.

I want to reiterate what I said a few days ago. Backers of proposition 8 point to the fact that they have now won twice, votes before the voters, as though that were somehow to stand up for all times. They of course will not acknowledge that the first time it came before the voters, the ban passed by large margins and this time it was a nail biter. I would wager to guess the next time this comes before the voters, it probably will not pass. Time is not on the side of the opponents of Proposition 8. They were able to win this largely through peripheral issues and mobilizing a diverse coalition of opponents. However, the impact of the narrow victory suggests the trajectory of public opinion on this issue. It is only a matter of time before the voters as a majority support the right of marriage equality.

---David M. Greenwald reporting