last hope for killing Proposition 8 -- the ballot
initiative that would reverse the right of same-sex couples
to marry by amending the state constitution -- died
this week when the California supreme court, without
comment, refused to hear a legal challenge to the
measure put forth by the National Center for Lesbian Rights,
Lambda Legal, the ACLU and others before the November
essentially argued that Prop. 8 would effect so major a
change to the California Constitution that it could
only be put to the voters by a two-thirds vote of the
state legislature or a constitutional convention, not
simply as the result of a signature drive.
But take heart.
Far from being over, the battle over Prop. 8's
validity has not yet even been joined. All the court
did Tuesday was to say, in effect,
"We're not going to hear these challenges
before the election." If Prop. 8 passes on
November 4, all the challenges will be there waiting
on November 5, and one of those challenges in particular is
review: In 2000, California voters approved Proposition 22,
which amended a section of the California Family Code
to read, "Only marriage between a man and a
woman is valid or recognized in California."
Significantly, Prop. 22 resulted in a statute. It
didn't change the state's constitution.
Statutes must comply with the state and federal
constitutions, and if they don't, the courts are
charged with striking them down, at least in theory.
exactly what the California supreme court did in its May 15
decision - it ruled that Prop. 22, the statute,
violated our state constitution in two major ways.
First, the court held that gays and lesbians, like
everyone else, enjoy a "fundamental right" to
marry under the constitution's due process and
privacy clauses, and that Prop. 22 violated that
right. A "fundamental right" is one the
government can't take away from anyone without
a compelling reason. Freedom of religion, free
expression, and voting are other fundamental rights.
California's is the first state supreme court
to recognize the fundamental right of gays and
lesbians to marry, according to Lambda Legal.
Second, the court
held that by permitting heterosexuals to marry the
person of their choice, but denying gays and lesbians that
same right, Prop. 22 violated the California
constitution's "equal protection"
clause. The equal protection clause forbids the government
from treating "similarly situated"
citizens differently without some reason. How
compelling that reason has to be depends on the right at
issue, and who's being deprived of it. If the
right is "fundamental," or the unequal
treatment is based on a "suspect
classification," the court must apply
what's known as "strict scrutiny" in
deciding whether the law is constitutional.
In its marriage
decision, the California supreme court held that Prop. 22
qualified for strict scrutiny on both grounds.
First, the court
ruled that the law impeded the fundamental right to
marry. Second, the court recognized that Prop. 22 harmed
gays and lesbians while leaving everyone else alone,
and then held that sexual orientation was a
"suspect classification," deeming gays and
lesbians worthy of the same protections afforded to
other marginalized groups such as African-Americans
and women that have historically suffered
discrimination. The idea behind suspect classifications,
sometimes called "suspect classes" or
"protected classes," is simple. If a statute
harms members of one of these protected groups more
than others, there's a suspicion of
discriminatory intent, which binds the courts to scrutinize
that law strictly. Long story short, statutes almost never
survive the lens of "strict scrutiny,"
and Prop. 22 was no exception.
So, what to do if
you're determined to torpedo other people's
happiness and your statutory gay marriage ban has just
burst into constitutional flames? Simple. You turn
your statutory ban into a constitutional ban. The
rationale -- them thar "activist" judges
can't rule part of the constitution itself
And that brings
us to Prop 8. Its language is exactly the same as the old
Prop 22, but Prop 8 would write that language into
California's constitution, not just its Family
Code. But in trying to change the constitution, Prop 8
faces a problem its predecessor didn't: California
law distinguishes between a constitutional
"revision" and a constitutional
"amendment." Under California Supreme Court
precedent, a revision is a measure that would
"substantially alter the [state's] basic
governmental framework." An amendment is any less
initiatives can only be put on the ballot by a two-thirds
vote of the legislature or by a constitutional
convention. Amendment initiatives simply require a
certain number of voters' signatures. It's
just plain common sense -- big changes should be
harder to make than little ones.
Prop 8 is the
result of a signature drive, not a two-thirds legislative
vote or a constitutional convention. If Prop 8 were to pass,
but the court would decide that banning same-sex
marriage would be a "revision" to the
constitution, then the initiative would not have properly
qualified for the ballot, and its passage would be
So how likely is
it that Prop 8 will be struck down if it passes? It's
impossible to say for sure because no California court has
ever had to decide whether a ballot initiative that
changes the state constitution to deprive members of a
"suspect class" or a "fundamental
right" was a constitutional revision or
In probably the
most analogous case, the California Supreme Court in 1979
held that a ballot initiative that reinstated the death
penalty after the court had ruled that punishment
unconstitutional was an amendment and not a revision.
But the initiative there did not seek to apply the death
penalty only to a certain group of people, and that's
Look at it this
way: Would a constitutional provision barring
African-Americans, and no one else, from marrying be a big
deal, i.e., a revision, or just an amendment? How
about one taking away women's right to vote?
Jews' right to worship? Prop 8 is indistinguishable
from each of these examples in the eyes of the law
because all would involve depriving a suspect class of
a fundamental right. Can any of these truly be matters
the framers of the California constitution intended to leave
to the whim of 50% of the voters, plus one?
In its marriage
decision, a majority of the California Supreme Court
California Constitution guarantees same-sex couples the same
substantive constitutional rights as opposite sex couples to
choose one's 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."
My bet is that
the court that penned these ringing words will not at the
end of the day permit our rights -- so recently recognized
and so hard won -- to be so easily, so
arbitrarily, and most significantly, so
unconstitutionally snatched away.