Was Proposition 8 Illegal? A Good Case Can Be Made

In Connecticut, voters held a referendum this year on whether to hold a constitutional convention, a more rigorous process for altering a constitution, which is what Connecticut would require in order to alter its constitution to ban gay marriage. The referendum was voted down.

Theoretically, one might ask whether California might not need to do the same thing, rather than have a majority of voters weigh in on a simple amendment, which California requires to be consistent with current constitutional principles. And you might ask, why wasn't issue taken to the courts before Prop 8 was put on the ballot, to spare the voters all this time and effort?

Well, I found out today that this was taken to the courts before 8 was on the ballot, but the court essentially said: we decline to comment at this time.

Throwing out the case before the vote may suggest the court was already dead set against invalidating the amendment for any reason. But if they were so dead set against it, why, then, did they rule that couples could rush to get married before the vote, creating all that further legal limbo necessary to hash out? That doesn't make sense to me: the court on the one hand thinks Prop 8 would probably be ok, but let's go ahead and let everyone rush into a big legal morass?

Or, could the court have acted the way it did because, by letting gays and lesbians get married, they were letting gay couples establish their rights in practice, not just theory. So that when/if Prop 8 did pass, THEN the argument against Prop 8 is now actually based on a real life situation: there are now actually rights that Californians are actually enjoying that this amendment would take away. The court may have simply been setting up the right conditions with which to strike Prop 8 down.

Now, the ACLU has filed the suit again. You can read it here.

After reading the suit, I have to say, I'm not pessimistic like Andrew Sullivan. The argument against 8 seems built on pretty air-tight logic to me. I find it hard to see how the court can fail to side with the ACLU on this, given that they allowed couples to immediately marry and also given the results of the vote.

In fact, it was the court itself that opened the door to the ACLU's logic in their own decision, basically handing them the logic of their suit.

1. The court's decision newly established that gays and lesbians are a "suspect" protected class deserving of a strict level of equal protection scrutiny under the California constitution, and that marriage for this group was a "fundamental right."

2. The Court then said that gays and lesbians could start getting married right away, because the right was so fundamental. So now there are hundreds of thousands of Californians enjoying a "fundamental right" that this amendment would now remove.

3. California law states that amendments can only clarify our better carry out the purpose of the constitution; to modify or "alter" the overall meaning of the constitution requires a more rigorous constitutional convention process.

4. The ACLU suit gives a good example of how a previous amendment to reimpose the death penalty was correctly decided to be OK as an amendment because it didn't violate California's equal protection clause - i.e., it didn't single out a protected minority (as the court has now said that gays are), but only clarified how rights should be carried out for everyone. Critically, the ACLU points out that no other ballot amendment in California history has ever attempted to take away a "fundamental right" of a minority of citizens, let alone a highly protected class (such as a racial or religious minority); and critically, there are now hundreds of thousands of married gay and lesbian Californians and the court has said that these citizens' marriages are protected by California's constitution.

4. Coup de grace: Therefore, since a completely unique amendment like prop 8 singles out a protected minority to take away "fundamental rights" from that minority ONLY, which the court as ALREADY SAID would violate the fundamental equal protection clause originally established in the California constitution, this cannot be a "clarifying amendment" of the constitution available through the initiative process but must be considered a fundamental "alteration" of the constitution's equal protection guarantee; therefore, it can only be ratified by a constitutional convention process.

Isn't that completely right?

Remember, this is based on California's unique constitution, where equal protection is a FUNDAMENTAL part of the constitution (not an amendment, like the US Constitution or other states), and the ballot initiative process in California is considered as only available for clarifying amendments, i.e., lesser clauses that only serve to clarify, not alter, the basic principles (again, wording that may not be identical for other states).

The key here that makes California different are really two things:

a) unlike any other state but Massachusetts and Connecticut, the court has ALREADY ruled gay marriage a FUNDAMENTAL right, and gays a suspect minority. California is the first state where an anti-gay-marriage amendment has passed AFTER that right, as well as discrimination against gays, has been determined to exist.

b) unlike other states, the amendment process in California cannot FUNDAMENTALLY alter the constitution.

So, in the eyes of California's court, the wording of this amendment would be construed as similar to one that said, "Only marriage between two Baptists is valid or recognized in California," or "Only marriage between two people of white race is valid or recognized in California." Since it was this very court that ruled marriage a fundamental right and gay people a highly protected class subject to the constitution's basic principle of equal protection, I don't see how they can escape this logic and rule that anything other than one of the following two things must happen next:

1. Either the intent of the amendment to limit marriage rights must be applied equally to all California citizens, in order to avoid violating the fundamental equal protection of gays and lesbians; so therefore all California marriages would be dissolved (probably converted to Domestic Partnerships).

or

2. If the amendment is to be interpreted as removing marriage rights from gays and lesbians only, it must be therefore be declared invalid, as it represents an alteration of the constitution's fundamental guarantee of equal protection, and therefore the legislature would need to convene a constitutional convention procedure (which would require a 66% vote of the citizenry to pass).

Interestingly, it is the closeness of the vote I think that dooms Prop 8. IF Prop 8 had passed with 70% voting yes, the court might have suggested that a constitutional convention would receive the same result therefore it would not be necessary to have the voters revote. But since the margin is WELL BELOW what's necessary to pass a constitutional alteration, the logic of this suit seems pretty solid: not enough people support this as a fundamental alteration, so for it to pass as an amendment, it would have to be interpreted in a way that didn't violate other more fundamental aspects of the California constitution; ie., legislature would have to apply it to all California citizens equally.

I'd love to see the reaction from the YES people to the idea that they've just passed a measure that ELIMINATES marriage for everyone.