The Legal Landscape after Proposition Eight: Why a Constitutional Amendment May Not be Constitutional

After California reversed course this November, and expressly forbade gay marriage, a few questions remain: first is the question of whether the amendment applies retroactively, invalidating marriages entered into before November 4th; second, and most importantly, is the question of whether the referendum re-banning gay marriage was even valid in the first place. Let’s take them in reverse order.

Prop. 8′s Retroactive Applicability

Despite the text’s seeming clarity -

Only marriage between a man and a woman is valid or recognized in California.

- the issue of retroactive application is not so simple. If the referendum were held to retroactively strip married couples of their status, Prop. 8 could be said to raise serious due process concerns. Denying future grants of a suspect right is a constitutionally less troublesome proposition than stripping an extant right: to avoid the possibility of a serious federal constitutional issue, then, there’s an argument that any court construing Prop. 8 should read the referendum to apply only prospectively. Notably, the state government is on the side of gay rights: should this question arise in a forum with the state “defending” – say, upon a suit for marriage benefits from the California government – I would not expect a full-throated argument for retroactivity. On constitutional common sense alone, then, I would bet already married gay couples are safe in their rights. Fingers crossed.

Prop. 8′s Wholesale Validity

Curiously, the issue of retroactivity may never arise. Several lawsuits already filed directly with the California Supreme Court (chief among them, Strauss v Horton) challenge whether Prop. 8 is even itself constitutional. It may seem counterintuitive to question whether a constitutional amendment is constitutionally valid – after all, isn’t the point of an amendment that the goal wasn’t constitutionally valid beforehand? – but what’s being questioned in these suits is not the validity of restrictions upon marriage, but the validity of the amendment process itself. The question goes to the means, not the end.

Per California law (and the ACLU’s brief), the elector’s ability to amend the Constitution by initiative (referendum) is not absolute. Although the California constitution itself does not distinguish between the magnitude of revisions, ((California Const., Art. XVIII, §§ 1-3.)) on several separate occasions the California Supreme Court has ruled that wholesale modifications of the constitutional structure cannot be accomplished by referendum. ((“Article XVIII of the constitution provides two methods by which changes may be effected in that instrument, one by a convention of delegates chosen by the people for the express purpose of revising the entire instrument, and the other through the adoption by the people of propositions for specific amendments that have been previously submitted to it by two-thirds of the members of each branch of the legislature.” Livermore v. Waite, 102 Cal. 113, 117 (1894).)) The distinction is between “amendments,” which only tweak, and can be accomplished by referendum, and “revisions,” which outright change, and can only be accomplished by a constitutional convention:

Taken together our Livermore and McFadden decisions mandate that our analysis in determining whether a particular constitutional enactment is a revision or an amendment must be both quantitative and qualitative in nature. For example, an enactment which is so extensive in its provisions as to change directly the “substantial entirety” of the Constitution by the deletion or alteration of numerous existing provisions may well constitute a revision thereof. However, even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also. In illustration, the parties herein appear to agree that an enactment which purported to vest all judicial power in the Legislature would amount to a revision without regard either to the length or complexity of the measure or the number of existing articles or sections affected by such change. ((Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, 22 Cal. 3d 208, 224 (Cal. 1978).))

Because “the very term ‘constitution’ implies an instrument of a permanent and abiding nature,” wholesale changes should be slow to come, and only through a deliberative process, while “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,” can be accomplished by the voters alone. ((Livermore, 102 Cal. at 118-19.)) Since eliminating a fundamental right affects the integrity of the document rather than its mode of application, the argument goes, the state would have to call a constitutional convention to eliminate gay marriage.

So, is Prop. 8 constitutional? Strange as it sounds, there’s a fair argument to be made in the negative. Whether it will carry the California Supreme Court is another question: the Court only implied the right of marriage by a four-to-three vote, ((In re Marriage Cases, 43 Cal.4th 757 (2008).)) and I would expect the Court’s ruling on this case, either way, to be by the same margin. It’s a tough case to make, but I’m happy to see it being made. Hang onto your hats: the fight against Prop. 8′s not over yet.