Constant Readers,
Proposition 8, which California voters passed Nov. 4, amended the California Constitution to add, “Only a marriage between a man and a woman is valid and recognized in California.” Here’s an update on the status of the amendment and the recently filed legal challenges.
Q: Is the language of Prop. 8 in effect right now?
A: Yes.
There is no governor’s signature
or waiting period requirement for a constitutional amendment
to take effect.
Q: Is Prop. 8 retroactive?
A: No. Earlier this year, when anti-same-sex marriage folks were fighting with State Attorney General Jerry Brown over the language used on the ballot, Brown took the position that Prop. 8 would not invalidate same-sex marriages that were performed between June 17, when the state Supreme Court’s ruling went into effect, and Nov. 4. Opponents of same-sex marriage have declared that they won’t try to challenge Brown’s (legally sound) interpretation.
One oft-overlooked facet of the In Re Marriage decision is the fact that the State Supreme Court dismissed anti-same-sex marriage groups as defendants because they had no right to be parties to the lawsuit. Why? Because, in order to be a party to a suit, a person or group has to show that they could be harmed by an adverse decision. (Lawyers call this "standing" - as in "Melissa had no standing to sue her best friend's parents over last year's family Christmas gifts.") The court held that, since the anti-gay-marriage groups could not prove that their members would suffer any harm if gay marriage were allowed, they did not have standing to be defendants.
In light of the court's prior decision, these same groups would not have standing to challenge the fact that Prop 8 is not retroactive. (They would have to show that their members would be harmed by the state's recognition of interim gay marriages, which they can't do.)
Q: What is the basis for challenging Prop. 8?
A: There are two ways to change the state constitution: an “amendment” only requires a majority vote (like what just happened), but a “revision” requires either a two-thirds vote in the state Assembly and Senate, and then a public vote, or a Constitutional Convention and then a public vote. Same-sex marriage advocates argue that allowing Prop. 8 to be put to the voters amounts to a revision without the required process.
Q: Then why was Prop. 8 on the ballot?
A: Back in June, advocates of same-sex marriage tried to prevent Prop. 8 from going on the ballot, but the state Supreme Court rejected that attempt without explanation. The likely reason is that until Prop. 8 passed, there was really no legal controversy to settle. (Lawyers refer to this issue as whether the case is "ripe" for adjudication.) You can bet the Supreme Court was crossing its fingers that Prop 8 wouldn't pass so they wouldn't have to wade into these murky legal waters.
Q: What is the difference between an amendment and a revision?
A: This distinction is at the heart of the legal challenges to Prop. 8, and yet there is surprisingly little legal guidance on the subject. We just don’t submit people’s rights to public referendum often enough to have nailed down useful definitions. Prior cases (unhelpfully) agree that “fundamental changes” to the state constitution amount to revisions.
Q: Is Prop. 8 a revision?
A: Proponents of same-sex marriage argue that (1) the purpose of our state constitution’s equal-protection clause is to protect politically unpopular minorities from the tyranny of the majority, and (2) such protection is one of the most important pillars of our constitutional system, so (3) when a state Supreme Court rules that a minority group is protected in a certain way, (4) subjecting that interpretation to a simple majority vote constitutes a “revision” to the fundamental way our constitution works.
To put it another way: Are we going to start letting a simple majority vote decide how we apply the equal-protection clause, whose very purpose is to protect minorities? If the answer is “yes,” then we should have to go through the bureaucracy of a revision to make that change.
Q: Is this a good argument?
A: Yes, it is. Frankly, I’ve been a bit disappointed at the nay-saying of the legal community on this case. While a ruling against Prop. 8 would require a leap of faith from a brave state Supreme Court, this is the same court that granted same-sex couples the right to marry in the first place. And while I’m neither gay nor married, I certainly don’t want my constitutional rights on the ballot for the next election. The implications of a ruling that upholds Prop. 8 are self-evidently scary, so I am maintaining a cautious optimism.
Q: What is going on with the legal appeals?
A: Okay. Three lawsuits have been filed so far. One by San Francisco, Santa Clara and Los Angeles. Another by pro-same-sex marriage groups including the American Civil Liberties Union. And a final lawsuit on behalf of two lesbians who wish to wed.
There are three immediate issues that have to be resolved:
(1) What the State's response will be. - The Coalition for California Families has already filed papers to be added as a defendant to the lawsuit. (This is called petitioning to be an "intervenor.") Assuming the Court tosses this attempt (see Note on Standing above) and others like it - the only defendant remaining would be the State of California. And Jerry Brown could either oppose the anti-prop 8 lawsuits, do nothing, or support the anti-prop 8 lawsuits. What's a gubernatorial hopeful to do?
(2) Whether the State Supreme Court will hear the cases. - Ordinarily, cases have to begin in the State Superior Court, be appealed to the State Appellate Courts and only then be heard by the State Supreme Court.
But the State Supreme Court can take a case directly if the issue is of "great public importance that should be resolved promptly." Presumably the appeal of Prop 8 fits this description but the Court can pretty much do what it wants here.
(3) Whether Prop 8 will be put on hold while the cases are litigated. - As stated above, the language of Prop 8 is already in effect in our state constitution. However, the recently-filed court papers ask for an immediate stop to the enforcement of that language while the parties fight about whether Prop 8 is constitutional.
I hope this helps, y'all. If you have specific questions, please feel free to email me or leave a comment and I'll do my best to answer.
Also: I just have to add a link to Bethy's take on all this. Awesome.
--Melissa
As usual, terrific analysis. You're a rock star!
Posted by: Be_Devine | November 13, 2008 at 13:26
Best analysis of this issue yet! Thank you for a making sound legal opinion available in simple english.
Posted by: heyanmarie | November 14, 2008 at 08:55
Thank you Melissa! I was especially enlightened by the discussion of "Is Prop 8 retroactive" as I had been wondering this very thing and it had not been answered satisfactorily on the news discussions I had heard. I love the balance you provide.
Posted by: Seana | November 14, 2008 at 11:16