Why Prop 8 Can -- and Must -- Be Overruled

When SF City Attorney Dennis Herrera sued last week to overrule Proposition 8, I didn't expect him to prevail - as much as I appreciated him trying. As wrong as it sounds, the initiative process allows a bare majority of California voters to change our state constitution - and with other states having passed similar marriage amendments, I couldn't see how the courts would repeal it. But after having read Herrera's well-written brief and done some legal research, I am now more optimistic that justice will prevail. Prop 8 was not your typical "amendment" that merely tinkers with the California Constitution. It was a drastic revision that deprives a "suspect class" (gays and lesbians) of a fundamental right under equal protection. And a simple majority vote of the people is not enough to take that right away - especially when the purpose of equal protection is to shield minorities. While other courts have upheld marriage amendments in other states, they have different Constitutions - and court rulings have changed considerably in a short period of time. And unlike many states, California has explicitly found sexual orientation to be a "suspect class." If the Court overrules Prop 8, it will be a powerful affirmation for justice - capping what has been a powerful year of "change."

It's been hard for me to be happy about last week's Election results - despite Barack Obama's landslide victory, a more progressive Congress and a good night locally for San Francisco progressives. People are angry and depressed about the passage of Proposition 8 - because unlike other states where gay couples had no marriage rights, here the right has just been stripped away. And if there was one state where we felt we could defeat such an amendment at the ballot box, it would be California.

It doesn't seem right that a bare majority of voters can change the Constitution by taking away peoples' rights. The purpose behind California's initiative process was to allow voters to pass laws when the state legislature wouldn't act - giving the "power of the people" a sovereign role. But even a Constitutional amendment just requires a majority vote - with the only "protection" being a higher signature threshold than an initiative statute. However, as Mayor Gavin Newsom said after Prop 8 passed, "protections in the Constitution have always been there to respect the rights of the minority versus popular opinion."

Amending the federal Constitution is far more difficult than the California Constitution - as we don't have a federal initiative process, and you need a two-thirds vote of the U.S. Senate and three-fourths of state legislatures to ratify it. The Federal Marriage Amendment that George Bush championed in 2004 was never about amending the Constitution - because the right-wing couldn't realistically get a supermajority to make it happen. It was just a political ploy to get Bush re-elected. Karl Rove knew a majority of the country doesn't support gay marriage, making it the perfect "wedge" issue to accomplish a short-term goal.

Likewise, Massachusetts has a higher threshold for changing its Constitution. You can't just gather signatures and then let the people decide - the state legislature has to formally vote to put it on the ballot. After the Massachusetts Court ruled for marriage equality in 2004, the right wing tried to launch a Constitutional amendment. But the Democratic state legislature refused to put it on the ballot - and as more and more gay couples got married (and people saw that the sky didn't fall), public opinion evolved to support it.

But Dennis Herrera's lawsuit on behalf of the City and County of San Francisco - which Santa Clara and Los Angeles Counties have now joined - highlights a critical distinction in California's Constitution that gives me hope. Even if voters pass a Constitutional Amendment, the courts can still decide if it was merely an "amendment" - or a substantive "revision." And if it was a "revision," voter approval by a simple majority is not enough - it also requires an okay by the state legislature (which probably wouldn't happen), or a constitutional convention. Why the distinction? Because mere "amendments" tinker around the edges; "revisions" are far more fundamental changes.

And the Courts have thrown out such changes to the Constitution as "revisions" under the right circumstances.

In June 1990, California voters passed Proposition 115 (the Crime Victims Justice Reform Act) - a conservative "law-and-order" measure that said certain criminal defendants would not have more rights than provided by the U.S. Constitution. Prop 115 had passed as an amendment, but the state Supreme Court called it a "revision." Why? Because, in Raven v. Deukmeijan (1990), they said Prop 115 had "such a far-reaching change in our governmental framework as to amount to a qualitative constitutional revision, an undertaking beyond the reach of the initiative process." Prop 115 adversely affected a defendant's right to due process, equal protection, assistance of counsel, and the standards for "cruel and unusual punishment" - which effectively made it a "revision."

Likewise, Prop 8 is a drastic "revision" (if not moreso) because it violates equal protection for a minority group.

Last May, the California Supreme Court found that depriving same-sex couples the right to marry violated equal protection - and that LGBT people are a "suspect class." A "suspect class" is a group that has suffered discrimination and needs protection. The central purpose behind equal protection is to protect unpopular minorities from a political majority who could take away their rights. You can't simply change the Constitution by majority vote to take away the right of gay people to marry - because that right comes from the equal protection clause. As Herrera wrote in his brief, "without a judiciary that has the final word on equal protection, there simply is no such thing as equal protection."

Of course, not all Constitutional amendments are "revisions." California's term limits law, for example, significantly altered how long members of the legislature can stay in office - but it did not violate the foundational nature of our Constitution. Even a Proposition that said the death penalty was not "cruel and unusual punishment" (which, like in this case, overruled a Supreme Court decision) was deemed acceptable - because one of the standards for determining what is "cruel and unusual" punishment is public opinion. On the other hand, what do you do when the people pass an amendment that violates the fundamental rights of a minority?

What if in the aftermath of September 11th, California voted to change its Constitution to require all Muslims to travel with passes? What if California - afraid that undocumented workers were "invading" the state - voted to expel Latino kids from school, or deny them medical treatment? That would violate equal protection, but would it be constitutional just because proponents gathered the minimum number of signatures necessary so that it was a "constitutional amendment" (rather than a statute)? It isn't hard to see that, without some safeguards in place, our state's equal protection clause can become Swiss cheese.

Granted, I was at first skeptical that Prop 8 could be found unconstitutional - because after all, a lot of other states have passed similar marriage amendments through the initiative process. Hasn't this been tried before, and weren't those amendments upheld?

Yes, but the facts are distinguishable. Alaska's voter-approved amendment, for example, was upheld - but Alaska can't just change its constitution by collecting signatures and having a bare majority of voters approve it. Like Massachusetts, you need two-thirds of the legislature to put it on the ballot - which makes Alaska's "amendments" the functional equivalent of a "revision" in California. So it has some minimal safeguards for initiatives that California does not have. Moreover, Alaska's Constitution does not recognize LGBT people to be a "suspect class" - so the violation under equal protection was harder to prove.

In Oregon, however, the state Supreme Court upheld its marriage amendment - and even rejected the notion that it was a fundamental "revision" to their state's Constitution. But that ruling, Martinez v. Kulongoski (2008), was flawed - and our state Supreme Court would be wise not to follow it. In Martinez, the Oregon Court almost exclusively relied on a decision from 1994 that found an anti-gay measure to be an "amendment" rather than a "revision." If you read the case, it actually gave the subject short shrift.

But a lot has changed in the field of gay rights since 1994 - as far as court rulings are concerned - that should influence the Prop 8 ruling. In Romer v. Evans (1996), the U.S. Supreme Court threw out a Colorado proposition that repealed anti-discrimination laws protecting gays and lesbians - because they said hate is not a "rational basis" for violating equal protection. In Lawrence v. Texas (2003), the U.S. Supreme Court overturned Texas' sodomy ban - because the right to privacy extends to consensual sex (it also said you can't make it illegal for gay people while making it legal for straights.) The Martinez court ignored both cases.

Finally, California's marriage ruling on May 15th was not just remarkable for granting marriage rights to same-sex couples. The most important part of the decision was that gays and lesbians were deemed a "suspect" class - and discrimination based on sexual orientation must pass strict scrutiny. Even if voters later passed Prop 8 to eliminate the right to marry, the other parts of the decision stand - meaning that to discriminate against gays violates equal protection of the highest order. The Supreme Court must overrule Prop 8 - asserting that a simple vote of the people just can't do it.

EDITOR'S NOTE: Paul Hogarth is the Managing Editor of Beyond Chron, San Francisco's Alternative Online Daily, where this piece was first published. He was a law school intern at Equality California in the summer of 2005, and got his J.D. from Golden Gate University in 2006. He is an attorney licensed to practice law in California.

Comments

[JohnBisceglia]

Paul, we need the voices in this country to go from whispers to RAUCOUS on the INSANITY of the PROCESS of PROP 8 - NEVER AGAIN!

Our country ALLOWED the PROCESS of a vote on my civil rights, and the civil rights of countless LGBTIQ families, with and without CHILDREN. Some young children in CA walked outside one day and experienced adults....society.....arguing and fighting about their family's worth. Then one day they woke up and discovered that THEIR FAMILY was VOTED AGAINST.

What kinds of psychological damage has happened to this children? Will we know for years?

To the YES ON PROP 8 crowd who are already feeling their heartbeat quicken due to my last sentence.........NO - having to realize GAY PEOPLE EXIST does NOT qualify as "psychological damage"......nor dies having to educate your children that GAY PEOPLE EXIST.

[pons1595]

The LDS church contributed a significant amount of money and effort to endorse PROP 8 in California via its network of church, media, and community outlets enshrining discrimination under the law for thousands of Californians and their families.

"In general, no organization, including a church, may qualify for IRC section 501(c)(3) status if a substantial part of its activities is attempting to influence legislation (commonly known as lobbying)."

http://www.thepetitionsite.com/1/review-the-501c3-status-of-the-church-of-latter-day-saints-the-mormons

[Felicty]

PICTURE IT!

Thousands upon thousands of new people attending services, eating, talking, smoking, speaking on cell phones, and leaving behind NO MONEY.

Would they have the courage to ask us to leave?

[Felicty]

I think a good protest would be for all of us to attend church every Sunday and, when the collection plate is passed, a NO on Prop 8 card should be dropped into the plate instead of money.

We can do this until all the churches close due to lack of income.

[sclucie]

I don't have a legal background - but I certainly hope that it is overturned. And I appreciate all the writers in the past week who have written sane, heartfelt and intelligent pieces on Prop 8. Almost without exception, they have focused on solutions - and some on the incredible ineptitude of the Prop 8 opponents. I gave money. I was revolted when I saw some of those funds channelled into ads full of malice and bigotry. I was even more revolted when I saw post after post after post full of recrimination - against other minority groups.

I hope it is overturned - and that the bigots within the gay community are just a tiny but extremely vocal minority. I've never known any straight couple with the committment and real desire for a marraige that I have seen in my gay friends and relatives.

[randyjet]

The argument is absurd on it face since gays have NEVER before had the right to marriage, so they have NOT been denied any prior right. Also, the amendment is narrowly drawn and hardly violates all other statutes that were affected by Prop 115. You also forget that the courts have held that Congress can draft men into the service against their will, which violates the most fundamental right to life and liberty. There was no amendment needed to pass that law.

As a matter of practical politics, if the CA court decides to legislate from the bench, they will be voted out of office with an even bigger majority. Remember what happened to Rose Bird.

[Nikola Tesla]

It might help if you knew what you were talking about.

[kjstjohn]

I understand where you are coming from. Legally, however, your argument will probably fail under California law. The reason is that gays have been legally determined to be a suspect class whose marriage rights have been denied in contravention of the California Equal Protection Clause. Legally (under California law, mind you) the right of gays to marry is as old as the right of straights to marry. In no sense, therefore, is it a "new" right.

I predict that the California Supreme Court will rule that Prop 8 is a revision. Then it will be up to the voters to determine whether they wish to reconstitute the Court.

[vinny]

I am all for LGBTs pressing for their rights. However, I skimmed through the Supreme Court ruling, and I must say that it seemed like weak reasoning to me. First of all, to think sexual orientation is a suspect class on par with gender or disability seems like a stretch. How is sexual orientation immutable? How are gays politically impotent? How does sexual orientation place one in a discrete and insular minority? Beyond discrimination, these are characteristics of a suspect class that deserve better 'rational scrutiny'. The reason being is that a change in the fundamental structure of the law beyond guaranteeing righs for some also has consequences for others (e.g. adopted children) and could be potentially abused (e.g. two same-sex heterosexuals). I am not saying that these are impediments to gay marriage, but in reading CA's Supreme Court ruling I got the sense that the equal protection argument was well-intended but poorly framed. I predict troubles down the road.

[Nikola Tesla]

or not.

[Beca]

Sexual Orientation--well the "wrong one" can get you fired, denied housing, employment, health care, education, and protection from abuse and violence. Under the law, at least most state laws, it is still legal to discriminate against anyone who is or might be perceived to be gay. That would make sexual orientation (well, being gay) a suspect class on par with gender or disability.
Your example of the "potentially abused" makes no sense. What harm would come of "two same-sex heterosexuals" being able to adopt a child?! As long as they both love the child, what harm can come of that?

[kjstjohn]

It is true that some landmark decisions are poorly framed. Many would say Roe v. Wade is poorly framed. Once a decision is made by a Supreme Court, however, the principle of stare decisis comes into play. This principle favors legal consistency in subsequent court rulings even when an earlier decision may be, as you say, based on "weak reasoning." I do not expect the Supreme Court of California to reverse course on this issue.

[buzziea]

No matter courts or voter approved changes, gays must take on a more assertive stance to gain our fundamental rights. The thinking by some gay tacticians that we must not offend too much in order to gain public approval is way too lame to be taken seriously. As long as society does a whammy on such passivity among gays, of course the majority will not budge. But the squeaky wheel gets the grease. If gays would not backdown but rather stand their ground and even embolden their confrontation with our oppressors, we will meet with more resounding success. The fault dear brethren lies not so much with the majority denying us our rights but more so with us not being tough enough to demand our rights. It's a fight WE must win. End of sermon.

[HollywoodBill]

Let's not forget the saga of Rose Bird.

Rose Bird was the Chief Justice of the California supreme Court who never could allow a single death penalty case to be administered. Appointed by Jerry Brown, her dismissal of the will of the people finally led to a decade long battle to recall her and three of her colleagues on the CA Supreme Court. Technicalities prevented an actual recall. However, CA Supreme Court Justices are subject to electoral review and must be approved by the voters every 12 years. Rose Bird and three of her colleagues were the only Supreme Court Justices in California history to be denied subsequent terms.

The voters of California are very tolerant as long as their wishes are followed. Whatever one thinks of the initiative process, it does allow the closest thing to democracy that is possible in a state this large.
If the California Supreme Court overules this amendment to the state constitution that the public just passed, there will be an electoral firestorm that will be impossible to contain. Recalling Justices, or any public official for that matter is relatively simple. A simple majority can recall. Special elections are notorious for small, but dedicated voters getting to the poll.

Judicial recourse may not be the best solution here. The Justices are fully aware of what happened to Rose Bird. The easier solution would be to put another initiative on the ballot and work to gain voter acceptance.

[Nikola Tesla]

Judicial recourse is the ONLY solution.

[ReverseCurve]

Marriage for many people carries a religious affiliation and sentiment. This is not without cause. The Bible talks about a man and a woman being joined as one. The church (the religious aspect of the union) marries the two. Some heterosexual couples are married by a justice of the peace and do not have, nor do they want a religious affiliation. This may be because they are atheists or for many other reasons. That is their right. However, those who marry and exclude their vows before God AND THE CHURCH should be recognized as a couple joined together in a civil union. So too, should it be for a same sex union.

The president-elect favors civil unions for same sex couples. The president-elect is a Christian.

Certaintly the two entities (marriage and civil union) can co-habitate. If gays and lesbians would relinquish their battle of "name only," they stand a far better chance of gaining all the rights they seek.

[Nikola Tesla]

Just take what we give you, shut up and go away!

[courtb]

I'm sorry, but I must respectfully disagree. Marriage is not a term found in the Bible, therefore, why should the Christian religion hold a monopoly over it? I may be missing your point, and if so, I'm sorry. I think that you're trying to say that marriage should take place in a church and everything else should be a civil union?

And I have another question. What about those churches that open their doors to gay marriages? Or what about other religious ceremonies? As they don't take place in a church, should they be considered a civil union as well? If not, what if they are also comfortable performing religious marriages for homosexual couples?

[texanna]

Everyone should either have a civil union or a marriage as far as the state is concerned. The problem is that while the term "marriage" isn't mentioned in the Bible, it is mentioned in states' laws. So, the simplest way to go about this is to say everybody is married. If this bothers the religulous, then they should pay the costs of eliminating the term as far as the government is concerned so that everyone would have a civil union legally speaking. Marriage would be reserved for the churches to bestow as they see fit, but it would have no legal standing.

[quadman]

"marriage" and "marriages" is mentioned about 20 times in the KJV of the Bible.

[Eidolas]

If Prop 8 had been defeated by "a bare majority of voters", would it still "not seem right" to change the Constitution? No, I suspect in that event, you would say that the people had spoken and a majority, "bare" or otherwise, wanted to allow gays and lesbians the right to get married. Well, as it is, the people have spoken.

[Nikola Tesla]

Reading comprehension difficulties?

[reutynwer]

If Prop 8 had been defeated, there'd be no change. The Constitution would stay as is and - because the CA Supreme Court interpreted the current Constitution to include a right to marriage for same sex couples - marriage for all would continue. But this isn't really about the sanctity of the Constitution. It's about rights.

At the core of the Constitution and the Bill of Rights is the idea that certain rights are inherent, which no one should be able to take away - even under the guise of "democracy." If we sincerely believe that rights aren't subject to others' acceptance of them, it becomes a very simple question of equality. Why should same sex couples have a weaker claim to marriage than heterosexual couples? Why should their right to choose how to conduct their personal lives and relationships be open to public debate?

Why should "the voice of the people" be determinative? Why should the rights of a minority be subject to the whim of many people who don't belong to the group? As the article says, sexual orientation has already been defined as a "suspect class" in terms of law. So what if "the people" voted to take away Blacks' right to own property? Would that be acceptable too? No - and we'd be disgusted by any State that tried.

The passage of Prop 8 was definitely a blow to equality - but in a truly free and equal society, it never would have been on the

[reutynwer]

...ballot in the first place.

[Beca]

Eidolas: You are missing one key point. If Prop8 would have been defeated by any margin, THERE WOULD BE NO CHANGE TO THE CALIFORNIA CONSTITUTION!
The passage of Prop 8 ELIMINATES a BASIC CIVIL RIGHT to a particular group of people--people who are gay. That is un-Constitutional--under our US Constitution, all Americans are to be greatned equal rights under the law--that includes people who might be gay.

[kjstjohn]

Beca, I agree with you that the US Constitution should guarantee gays equal rights under the law. Our current US Supreme Court, however, has an extremely narrow view of the Equal Protection Clause and has in recent years refused to give the Clause an expanded scope in every case brought before it except in the case of Bush v. Gore. That is the case where the Republican majority on the Court essentially called the election for Bush.

The rights of gays in California are guaranteed under the Equal Protection Clause of the California Constitution which the California Supreme Court has found to be much broader than the Equal Protection Clause of the US Consitution.

The reason why I think Prop 8 will be overruled by the California Courts is that Prop 8 changes the California Consitution in too significant a respect and therefore cannot be passed without the approval of the California legislature (or a Constitutional Convention).

[Halsey]

My mind goes etcha-sketch when the legalities/Constitutional'esq arguments about Prop 8..come in..Yours, Paul, does as much as it can..and I guess it will end up in court....the base issue, the primal issue is the right?...of two people to pledge to love each other.

I am so straight...and don't get it...family values? My gawd...we'd better outlaw divorce or at least make it very very VERY difficult for those in Orange County (dig)...to get a divorce...I mean..it IS about the children.

Talk about a REAGAN issue..'GET THE GOVERNMENT OUT OF MY LIFE"..(reagan..not me)..but.."they cannot have it both waysl.... Gay, Black, red and yellow....it's a COMMITMENT to love....
That it is an issue...makes this straight woman livid....marriage is marriage...(and any biblical message..better include slaves and masters and stoning and plucking out of eyes).....

[Glenn1441]

Finally, it takes you, Mr. Hogarth, to offer the LGBT community some news, and some hope, as to the current state-of-affairs in CA. In spite the Internet and 'round-the-clock news cycles, I have found little in the way of possible solutions to repealing the horrific Prop. 8.

Thus far, one only finds at HuffPost rants, comedic turns or impassioned defenses of the African-American or even Mormon Church communities.

As ever, your posts are most appreciated here because you, Mr. Hogarth, always work towards finding causes and solutions rather than posting remarks that only serve to underscore how we in the LGBT community so rightly feel.

[human2]

Thank you for this. A friend called me and tried to explain it, but I was still confused. This makes things more clear and allows me to open that box, in the bottom of which Hope still remains. It is so freaking weird to have been given the right to marry, to HAVE married and now know that there are hateful people (who of course don't see themselves as hateful) that now emboldened, want to try to annul my marriage. I've been married since June 17th. I haven't read in any publication that my being legally married has hurt anyone else or cost anyone a dime. In fact, I supported my strapped county by paying for a marriage licence and filing fee.
And thank you for this for the more personal reason that I'm seeing the Peace and Justice communities posting action alerts that don't include the rallies against Prop 8 that are set to take place ALL OVER THE COUNTRY on Saturday November 15th. I guess that means Peace and Justice for Straight People Only. I'm personally not willing or wanting to see this huge issue just dop below the radar, or get sent to the back of the line because our country is bleeding from 6 dozen other "More Critical" wounds.
There is no justice until we all have it.

[tjgsd]

Thank you Paul! Since the election I have been on an emotional roller coaster and this has finally given me some hope that the courts will overrule Prop 8.