[Marxism] Prop 8 Court Rulling

[Adam Richmond <adambrichmond@xxxxxxxxx>]

Judicial Council of California 
Â
Supreme Court Rejects Challenges to 
Prop. 8, But Finds Existing Marriages of
Same-Sex Couples Valid 

San Francisco â The California Supreme Court, by a 6-1 vote, today rejected a 
constitutional challenge to Proposition 8, an initiative measure adopted by the 
voters at the November 4, 2008 election that added a section to the California 
Constitution providing "Only marriage between a man and a woman is valid or 
recognized in California." The courtâs opinion resolves the petitions in 
Strauss v. Horton, S168047, Tyler v. State of California, S168066, and City and 
County of San Francisco v. Horton, S168078. The opinion is available online at 
www.courtinfo.ca.gov/courts/supreme/ . 
The court further unanimously held that the scope of Proposition 8 is narrow, 
limited solely to restricting the use of the term "marriage" to opposite-sex 
couples, while not otherwise affecting the fundamental constitutional rights of 
same-sex couples described in its earlier opinion in In re Marriage Cases 
(2008) 43 Cal.4th 757. 
The court also unanimously held that the new constitutional provision applies 
only prospectively, and does not affect the continued validity of the estimated 
18,000 marriages of same-sex couples that occurred prior to November 5, 2008, 
when the new constitutional provision took effect. The challenges to 
Proposition 8 before the court were filed by numerous same-sex couples and 
public entities and were based solely on the provisions of the California 
Constitution and did not raise any federal constitutional claim. 
The majority opinion was authored by Chief Justice Ronald M. George, and was 
joined by Justices Joyce L. Kennard, Marvin R. Baxter, Ming W. Chin, and Carol 
A. Corrigan. In addition to signing the majority opinion, Justice Kennard filed 
a separate concurring opinion. 
Justice Kathryn Mickle Werdegar filed a concurring opinion, agreeing with the 
result reached by the majority opinion but disagreeing in part with its 
analysis. Justice Carlos R. Moreno filed a concurring and dissenting opinion, 
agreeing with the majorityâs conclusion that Proposition 8 applies only 
prospectively but concluding that Proposition 8 is invalid because it is not a 
lawful amendment of the California Constitution. 
MAJORITY OPINION
The 136-page majority opinion notes at the outset that the courtâs role is 
not to determine whether Proposition 8 "is wise or sound as a matter of policy 
or whether we, as individuals believe it should be a part of the California 
Constitution," but rather "is limited to interpreting and applying the 
principles and rules embodied in the California Constitution, setting aside our 
own personal beliefs and values." 
The opinion further emphasizes that the principal legal issue in this case is 
entirely distinct from the issue that was presented in the courtâs decision 
last year in In re Marriage Cases (2008) 43 Cal.4th 757. There, the court was 
called upon to determine "the validity (or invalidity) of a statutory provision 
limiting marriage to a union between a man and a woman under state 
constitutional provisions that do not expressly permit or prescribe such a 
limitation." In the present case, by contrast, the principal issue "concerns 
the scope of the right of the people, under the provisions of the California 
Constitution, to change or alter the state Constitution itself through the 
initiative process so as to incorporate such a limitation as an explicit 
section of the state Constitution." 
Amendment or Revision
Under the California Constitution the initiative process may be used to propose 
and adopt constitutional amendments but may not be used to revise the state 
Constitution. Petitioners primarily contend that Proposition 8 is a 
constitutional revision rather than a constitutional amendment and therefore 
could not lawfully be adopted through the initiative process. 
In addressing the question whether Proposition 8 constitutes a constitutional 
amendment or, instead, a constitutional revision, the majority observes that 
"we by no means write on a clean slate." The opinion explains that the 
amendment/revision dichotomy dates back to the original 1849 California 
Constitution, long before the adoption of the initiative process in 1911; the 
origin and history of the distinction "indicates that the category of 
constitutional revision referred to the kind of wholesale or fundamental 
alteration of the constitutional structure that appropriately could be 
undertaken only by a constitutional convention, in contrast to the category of 
constitutional amendments which included any and all of the more discrete 
changes to the Constitution that thereafter might be proposed." 
Furthermore, the opinion points out that over the past three decades numerous 
California Supreme Court decisions have established that in determining whether 
a constitutional change constitutes a revision rather than an amendment, a 
court must assess "(1) the meaning and scope of the constitutional change at 
issue, and (2)Âthe effect â both quantitative and qualitative â that the 
constitutional change will have on the basic governmental plan or framework 
embodied in the preexisting provisions of the California Constitution." 
Analyzing the scope of Proposition 8, the majority opinion explains that, 
contrary to petitionersâ assertions, the initiative measure does not 
"entirely repeal" or "abrogate" the aspect of a same-sex coupleâs state 
constitutional right of privacy and due process discussed in the majority 
opinion in the Marriage Cases â namely, the constitutional right to "choose 
oneâs life partner and enter with that person into a committed, officially 
recognized, and protected family relationship that enjoys all of the 
constitutionally based incidents of marriage" â nor does it "fundamentally 
alter" the substance of state constitutional equal protection principles 
recognized in that opinion. 
Instead, it carves out a limited exception to these constitutional rights by 
reserving the official designation of the term "marriage" for the union of 
opposite-sex couples, but leaves undisturbed all of the other aspects of a 
same-sex coupleâs constitutional right to establish an officially recognized 
and protected family relationship and to the equal protection of the laws. 
The opinion emphasizes that it is not minimizing the significance that the 
official designation of "marriage" holds for both the proponents and opponents 
of Proposition 8, and explains that an accurate assessment of the actual effect 
of Proposition 8 on the constitutional rights of same-sex couples is necessary 
to evaluate the constitutional challenges that are advanced in this case. 
The majority opinion then analyzes the quantitative and qualitative effect of 
Proposition 8 on the preexisting provisions of the state Constitution. 
Petitioners concede that the measure does not amount to a quantitative 
revision, but maintain that it constitutes a qualitative revision. Addressing 
this contention, the opinion explains that the distinction between an amendment 
and a revision does not depend upon the relative importance of the measure in 
question, pointing out that "(1) the right of women to vote in California, (2) 
the initiative, referendum, and recall powers, (3) the reinstatement of the 
death penalty, (4) an explicit right of privacy, (5) a substantial modification 
of the statewide real property tax system, and (6) legislative term limits â 
to list only a very few examples â all became part of the California 
Constitution by constitutional amendment, not by constitutional revision." 
Instead, the governing decisions establish that whether a change amounts to a 
qualitative revision depends upon the nature and scope of the proposed 
alteration. Reiterating the standard that has been applied in all of the 
numerous California cases decided in recent decades, the opinion states that to 
constitute a qualitative revision "a constitutional measure must make a far 
reaching change in the fundamental governmental structure or the foundational 
power of its branches as set forth in the Constitution." 
Applying this standard to Proposition 8, the opinion concludes that a measure 
limiting access to the designation of marriage to opposite-sex couples does not 
meet this test. Although petitioners claim that the proposition transforms the 
judicial function, the opinion explains that the measure does not interfere 
with the courtsâ ability or traditional responsibility to faithfully enforce 
all of the provisions of the California Constitution, which now include the new 
section added through the votersâ approval of Proposition 8. 
Petitioners also contend that Proposition 8 should be considered a 
constitutional revision because it conflicts with a fundamental constitutional 
principle that protects a minority group from having its constitutional rights 
diminished in any respect by majority vote. The majority opinion explains there 
is no authority to support the claim that in California a majority of voters 
may not adopt through the initiative process a measure that diminishes a state 
constitutional right, even if that right has been interpreted and applied in a 
judicial decision. The opinion cites many amendments to the California 
Constitution, adopted through the initiative process by majority vote in 
response to court decisions, that have had just such an effect. 
Although a number of other state constitutions contain provisions that preclude 
using the initiative power to amend specified provisions of those 
constitutions, the majority opinion emphasizes that the California Constitution 
contains no comparable limitation. Because there is no express restriction on 
the initiative power, and consistent with past California holdings, the 
majority opinion concludes that the California Constitution does not restrict 
the peopleâs right to use the initiative to modify preexisting constitutional 
rights through the approval of Proposition 8. 
Separation of Powers
The majority opinion next addresses petitionersâ claim that Proposition 8 
violates the state constitutional separation of powers doctrine. The majority 
opinion rejects this contention, pointing out that, contrary to petitionersâ 
assertion, Proposition 8 does not "readjudicate" the issue that was resolved by 
this court in the Marriage Cases. Proposition 8 does not purport to revisit the 
question of the state of the law at the time of the Marriage Cases, but instead 
establishes a new substantive constitutional rule that took effect upon the 
votersâ approval of the initiative measure. 
Further, because the state Constitution explicitly recognizes the right of the 
people to amend the Constitution through the initiative process, the people, in 
exercising that authority, have not usurped a power allocated by the 
Constitution exclusively to the judiciary or another branch of government. 
Â
Inalienable Rights
The majority opinion next addresses and rejects the Attorney Generalâs claim 
that because article I, section 1 of the California Constitution characterizes 
certain rights including the right of privacy as "inalienable," Proposition 8 
is invalid because it abrogates such rights without a compelling interest. 
The opinion explains that not only does Proposition 8 not "abrogate" the aspect 
of the right of privacy discussed in the majority opinion in the Marriage 
Cases, but that the identification of a right as "inalienable" has never been 
understood to mean that such right is exempt from any limitation or to preclude 
the adoption of a constitutional amendment that restricts the scope of such a 
right. The opinion emphasizes that there is no authority to support the 
Attorney Generalâs theory. 
Validity of Existing Marriages of Same-Sex Couples
Finally, the majority opinion addresses the question of the effect of 
Proposition 8 on the marriages of same-sex couples performed prior to the 
adoption of Proposition 8. Applying the well-established legal principles that 
govern whether a constitutional provision should be interpreted to apply 
prospectively or retroactively, the opinion concludes that Proposition 8 cannot 
be interpreted to apply retroactively and that the marriages of same-sex 
couples performed before the effective date of Proposition 8 remain valid and 
must continue to be recognized in California. This holding of the majority 
opinion was concurred in by all of the justices. 
JUSTICE KENNARDâS CONCURRING OPINION
In her separate concurring opinion, Justice Kennard explains that "[a]lthough 
the people through the initiative power may not change the courtâs 
interpretation of language in the state Constitution, they may change the 
constitutional language itself, and thereby enlarge or reduce the personal 
rights that the state Constitution as so amended will thereafter guarantee and 
protect. 
"The difference between interpretation and alteration is the difference between 
the judicial and legislative powers. Interpretation of existing statutory and 
constitutional provisions is a fundamental power of the judicial branch, while 
alteration of existing statutory and constitutional provisions â by addition, 
deletion, or modification â is a fundamental legislative power that the 
people may exercise through the initiative process. 
"Although this courtâs decision in the Marriage Cases remains the final word 
on the meaning of the state Constitution as it then read, the people have now 
used their initiative power to refashion the wording of the California 
Constitution and by this means have altered its substance, and thus its 
meaning, as of the effective date of the initiative measure."
JUSTICE WERDEGARâS CONCURRING OPINION
In her concurring opinion, Justice Werdegar states that although she agrees 
with the majority opinion that Proposition 8 "is a valid amendment to the 
California Constitution rather than a procedurally defective revision," she 
rejects "much of the majorityâs analysis." 
Disagreeing with the majority that prior California decisions define a 
constitutional revision as limited to a constitutional change that is "focused 
on governmental structure and organization," the concurring opinion declares 
that "[t]he drafters of our Constitution never imagined, nor would they have 
approved, a rule that gives the foundational principles of social organization 
in free societies, such as equal protection, less protection from hasty, 
unconsidered change than principles of governmental organization." 
Justice Werdegar explains that "just as an amendment of sufficient scope to a 
single principle as important as judicial power can be a revision .Â.Â. so 
too, in my view, can be an amendment of sufficient scope to a foundational 
principle of individual liberty in our free society, such as equal protection." 
The critical question, as she would pose it, "is whether Proposition 8 
accomplishes a change of sufficient scope in a foundational principle of 
individual liberty as to amount to a constitutional revision."
Justice Werdegar concludes that although Proposition 8 impinges upon the right 
of same-sex couples to have their family relationship accorded respect and 
dignity equal to that accorded the family relationship of opposite-sex couples, 
the measure "has not brought about such a broad change in the principle of 
equal protection as to amount to a constitutional revision." She emphasizes 
that "all three branches of state government continue to have the duty, within 
their respective spheres of operation, today as before the passage of 
Proposition 8, to eliminate the remaining important differences between 
marriage and domestic partnership, both in substance and perception." 
JUSTICE MORENOâS CONCURRING AND DISSENTING OPINION
In his concurring and dissenting opinion, Justice Moreno concludes that 
Proposition 8 is not a lawful amendment to the California Constitution because 
it alters the equal protection clause to deny same-sex couples equal treatment, 
explaining that "requiring discrimination against a minority group on the basis 
of a suspect classification strikes at the core of the promise of equality that 
underlies our California Constitution and thus ârepresents such a drastic and 
far-reaching change in the nature and operation of our governmental structure 
that it must be considered a "revision" of the state Constitution rather than a 
mere "amendment" thereof.â " Justice Moreno points out that the equal 
protection clause is "inherently countermajoritarian" and observes that "there 
is no âunderlyingâ principle more basic to our Constitution than that the 
equal protection clause protects the fundamental rights of minorities from the 
will of the majority." 
In Justice Morenoâs view, "[d]enying the designation of marriage to same-sex 
couples cannot fairly be described as a ânarrowâ or âlimitedâ exception 
to the requirement of equal protection," but adds that "even a narrow and 
limited exception to the promise of full equality strikes at the core of, and 
thus fundamentally alters, the guarantee of equal treatment . . . . Promising 
equal treatment to some is fundamentally different from promising equal 
treatment for all. Promising treatment that is almost equal is fundamentally 
different from ensuring truly equal treatment. Granting a disfavored minority 
only some of the rights enjoyed by the majority is fundamentally different from 
recognizing, as a constitutional imperative, that they must be granted all of 
those rights."
Justice Moreno declares that "Proposition 8 represents an unprecedented 
instance of a majority of voters altering the meaning of the equal protection 
clause by modifying the California Constitution to require deprivation of a 
fundamental right on the basis of a suspect classification." He states that 
"[t]he rule the majority crafts today not only allows same-sex couples to be 
stripped of the right to marry that this court recognized in the Marriage 
Cases, it places at risk the state constitutional rights of all disfavored 
minorities" and "weakens the status of our state Constitution as a bulwark of 
fundamental rights for minorities protected from the will of the majority."
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