Prop. 8: Which Way Now?

Will the courts or the ballot box be the best way to overturn California’s anti–gay marriage constitutional amendment? Legal scholar Kenji Yoshino examines both approaches.



On November 4, to the consternation of many pro-gay people, California voters passed Proposition 8, which amended that state’s constitution to maintain that “only marriage between a man and a woman is valid or recognized in California.” Prop. 8 effectively superseded the California supreme court’s May 15 decision that the state constitution guaranteed same-sex couples the right to marry.

Many advocates of same-sex marriage experienced Prop. 8 as an unexpected setback. The proposition represented the first time a constitutional amendment took away the right to marry from same-sex couples rather than withholding a right that had yet to be granted. Many who opposed Prop. 8 thought this unprecedented posture would lead enough moderate voters to take California governor Arnold Schwarzenegger’s position: While he opposed same-sex marriage, he would respect a court decision that legalized it. In the days immediately after the state high court decision, the polls suggested that Prop. 8 would be roundly defeated on Election Day.

Instead, Prop. 8 passed with 52% of the vote. Its passage halted same-sex marriages in the Golden State. It also raised the chilling possibility that Prop. 8 would invalidate the marriages of an estimated 18,000 same-sex couples who legally wed before November 4. I have expressed elsewhere my less-than-sanguine views about the amendment’s retroactive effects. Rather than revisiting that analysis, my focus here will be on what advocates of same-sex marriage should be doing to get rid of Prop. 8 altogether.

Only two options exist -- a judicial challenge to Prop. 8, which has already been filed, and a legislative attempt to overturn the proposition in a future election. These two options are not mutually exclusive. But the legislative strategy is far more promising.

The Judicial StrategySeveral gay rights organizations have already filed a lawsuit, which the California supreme court announced it will hear in March, arguing that the court should strike down Prop. 8. The lawsuit claims that Prop. 8 is invalid not because of substantive flaws but because of procedural ones. Under Article 18 of the California constitution, the constitution can be altered either by an “amendment” or a “revision.” An amendment requires only the approval of a majority of California voters. A revision, by contrast, requires a two-thirds vote by the state legislature and a subsequent majority vote by the people.

Amendments are easier to pass than revisions because amendments make smaller changes to the constitution. According to California precedent, an “amendment implies such 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.” A revision, on the other hand, makes “far reaching change[s] in the nature of our basic governmental plan.”

Prop. 8 was styled as an amendment, which is why a bare majority of California voters was sufficient to ensure its passage. The lawsuit maintains that Prop. 8 was a revision, given that it transformed the basic nature of California government. If the court accepts this argument, it will invalidate Prop. 8, as no one disputes that the California legislature never debated, much less approved, the proposition.

The lawsuit argues that Prop. 8 was a revision for several reasons. First, Prop. 8 took away a fundamental right -- the right to marry. It also withdrew that right from a protected group -- under California jurisprudence, gays and lesbians receive the same judicial protection as racial minorities. Finally, Prop. 8 usurped the traditional role of the courts of protecting minorities from the tyranny of majority rule.

Tags: Politics