International Municipal Lawyers Association - Local Government Blog

The Curious Case of California Same-Sex Marriage | March 12, 2009

Posted By: Larry Hoyt, County Attorney, Boulder, Colorado

Curious – Part Three, where we consider the arguments from the Proposition 8 challenges in determining, inter alia, whether a state constitutional equal protection clause resembles most a Thanksgiving turkey, ready to be carved up, leaving only the carcass. If you missed out on Parts One and Two, make sure you check them out.

Equal protection in California:  Interestingly, the California constitution originally did not have an express equal protection clause.  This is of course due to the fact that the original state constitution was approved in 1849, some 19 years prior to the addition of Amendment XIV to the U.S. Constitution that contained the federal equal protection clause.
Prior to the addition of an equal protection clause in the California constitution, an equal protection guarantee was held by the California courts to exist, based upon the state constitutional guarantees of liberty, due process, privileges and immunities, and uniformity of application of laws.  Not until 1974 did the state constitution obtain an express equal protection clause, one which tracks the language of the federal 14th Amendment.
As we learned in Part 2 of this blogpost, the state supreme court was called upon to rule on the applicability of the state’s equal protection guarantee, as well as its due process guarantee, to same-gender couples seeking to marry on the same terms and conditions as was statutorily provided to opposite-gender couples, in In re Marriage Cases (183 P.3d 384 Cal. 2008; opinion issued May 15, 2008.)  In that case, the court held that gay men and lesbians who seek to marry a person of the same gender were entitled to do so by virtue of the state due process and equal protection clauses, based upon a finding that marriage is a fundamental right, that sexual orientation is a suspect classification, and that none of the rationales given by the state for limiting marriage to opposite-gender couples could survive rational basis scrutiny, let alone strict scrutiny.

Proposition 8:  Persons seeking to limit marriage in California solely to opposite-gender couples began their quest to insert that provision into the state’s constitution in October, 2007.  The petitions for an initiative to accomplish this were submitted in April, 2008, and on June 2, 2008, the measure was certified to the statewide November 2008 general election ballot.
Of course, intervening between the time the petitions were submitted and the measure was certified, the In re Marriage Cases decision was announced.  Because the language of the measure had been set before the case opinion was issued, it did not expressly seek to counter the ultimate decision by the court.  The language of the proposition was quite simple:
Only marriage between a man and a woman is valid or recognized in California.
Cal. Const., Art. I, Sec. 7.5
Due to the intervening California Supreme Court decision in In re Marriage Cases, the state Attorney General, Jerry Brown, in June 2008 decided on language to be included in the state’s Voter Information Guide:
ELIMINATES RIGHT OF SAME-SEX COUPLES TO MARRY.  INITIATIVE – CONSTITUTIONAL AMENDMENT.
●  Changes the California Constitution to eliminate the right of same-sex couples to marry in California;
●  Provides that only marriage between an man and a woman is valid or recognized in California.
The Office of the Legislative Analyst went on to include the following analysis:  “…As a result, notwithstanding the California Supreme Court ruling of May 2008, marriage would be limited to individuals of the opposite sex, and individuals of the same sex would not have the right to marry in California.”
The Proponents’ statement in the Voter Information Guide stated further: “Your YES vote on Proposition 8 means that only marriage between a man and a woman will be valid or recognized in California, regardless of when or where performed.  But Prop. * will NOT take away any other rights or benefits of gay couples.”
[Emphasis in original; emphasis supplied.]
Proposition 8 was approved by voters by a margin of 52% to 48% on Nov. 4, 2008.  By its own terms, it was to take effect immediately upon the determination of the vote.

The Challenges to Proposition 8:  On November 5, 2008, before the final vote had been tabulated, 3 petitions to stay its effect and 1 petition for mandate were filed with the state Supreme Court.  Ultimately, 6 challenges were filed in that court, 2 by various individuals, 1 by the City and County of San Francisco, 1 by the Asian Pacific American Legal Center, 1 by Equal Rights Advocates and the California Women’s Law Center, and 1 by the California Council of Churches.
In response, 2 groups of individuals and entities sought intervention in support of the validity of Prop. 8: the “Official Proponents of Proposition 8” and the Campaign for California Families.  Over 45 groups have been granted status amici curiae in opposition to Prop. 8, and about 15 groups supporting Prop. 8 have been granted such status.  The City and County of San Francisco was joined by amici cities of Berkeley, Cloverdale, Davis, Long Beach, Palm Springs, and West Hollywood, by the Town of Fairfax, and by the counties of Humboldt and Sonoma.

The court has denied the petitions to stay the effect of Prop. 8, but granted review of the validity of Prop. 8 via the following certified questions:
(1) Is Proposition 8 invalid because it constitutes a revision of, rather than
an amendment to, the California Constitution?
(2) Does Proposition 8 violate the separation-of-powers doctrine under
the California Constitution?
(3) If Proposition 8 is not unconstitutional, what is its effect, if any, on
the marriages of same-sex couples performed before the adoption of
Proposition 8?
The court has set oral argument in the consolidated cases for the morning of March 5, 2009.  For more information, use the following link: http://www.courtinfo.ca.gov/courts/supreme/highprofile/prop8.htm

Arguments for and against the validity of Prop. 8:
Proposition 8 is valid because:
●  The rational basis for voters to approve Prop. 8’s limitations is that the limitation of marriage to opposite-gender couples is a deeply-rooted, multi-generational judgment.  The people of the state have created it via its constitution, having reserved to themselves the right to initiate amendments to the constitution, and have the inherent right to amend the constitution to affirm the widely-held beliefs about the structure of institutions in society.
●  Equal protection is not beyond the purview of the people of the state; the right to amend the constitution exists in priority to the power reposed in the judiciary to interpret the state constitution.  Equal protection is fundamental to the constitutional scheme, but the people of the state can decide how to apply equal protection to specific situations.
●  This is a simple amendment to the state constitution, which does not alter the basic structure of government, and therefore is not a constitutional revision requiring additional and extraordinary legislative process.
●  The ultimate value that is guaranteed by equal protection is human dignity, and in a state that permits abortion and capital punishment, both approved by the courts in due process challenges, the people can decide to treat persons differently consistent with the notion of human dignity.
●  Prop. 8 is not retroactive; it prevents the validity and legal recognition of same-gender marriages as of its effective date.  Same-gender couples married in California, or married elsewhere but residing in California prior to the effective date of Prop. 8 are no longer married, nor will their marriages be recognized for any legal purpose by governmental institutions, but this is prospective, not retroactive.
●  Same-gender couples in California can in the future obtain the benefits of the state’s domestic partnership law, and will have virtually all the same benefits that they would have had had they been able to marry or their marriages recognized as valid.  Thus, no equal protection violation exists.  (This argument is exactly the one that was decided to the contrary in In re Marriage Cases.)

Prop. 8 is invalid because:
●  Although popular sovereignty via the initiative process is a foundational premise of the state constitution, there are other foundational principles that inhere in that document, including due process and equal protection.  If these principles are to mean anything, they must be upheld against an assertion of unfettered authority of a majority of voters to eliminate a fundamental right from a disfavored suspect minority class of citizens.
●  The right to equal protection was deemed so fundamental that, after 125 years of statehood, the legislature referred to the voters a revision to the state constitution to make the guarantee of equal protection express, rather than an inherent element of due process and liberty.
●  Prop. 8 is a revision of the constitution, requiring approval by a 2/3rd vote of each house of the state legislature and referral and approval by the voters, not simply an amendment capable of being initiated by petition and vote, because it directly contradicts a fundamental principle of the whole constitutional document, i.e. equal application of the laws to every person subject to such laws.
●  Prop. 8 alters the fundamental structure of government, in that it removes from the judicial branch its authority to enforce equality of the laws of the state.  In this manner, Prop. 8 also violates the separation of powers doctrine of the state constitution.
●  Prop. 8, even if valid, should not be held to affect marriages previously performed, validated, or recognized in California.  Nothing in the language of the ballot issue nor in the Voters Guide informed voters clearly that existing same-sex marriages would be invalidated by Prop. 8 if it were approved.
●  Prop. 8 should not be retroactively applied to preexisting same-sex marriages because it conflicts directly with other constitutional measures, i.e. equal protection and the fundamental right of marriage found to inhere in the privacy and due process clauses of the state constitution.
●  Retroactive application of Prop. 8 would violate the vested property and liberty interests of married same-gender couples.  Much of this argument results from the fact that California is a “community-property” state, so invalidating a marriage results in dis-appropriating from each spouse the property that, but for the marriage, would be the community property of the married couple.
●  Marriage is in part a contract, and retroactive nullification of marriages would violate the contracts clause of the state constitution.  (You will note that the same violation would occur relative to the federal contracts clause, but petitioners have been very careful to argue only state constitutional limits and provisions, in order to avoid the potential appeal of a decision to the U.S. Supreme Court.)

So can voters carve away parts of state equal protection via the initiative?  Only the California Supreme Court (and maybe not even it) knows for sure.  State law requires that a decision be rendered within 90 days, so on or before June 3, 2009, a decision will be announced.

Thus, watch this space for the “epi-blog.”

In the meantime, we will take up consideration of the multi-state campaign to render affirmative action programs unconstitutional through initiated amendments to various state constitutions.


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This blog is made possible by the International Municipal Lawyers Association (IMLA), but may include guest bloggers (who are attorneys with experience in local government matters) who might or might not work for IMLA. Their views (and those expressed on this site) do not necessarily express the views of IMLA.

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