A Stitch in Haste

The litigation now before the California Supreme Court is very easy to frame but not so easy to analyze.

The relevant portion of the California Constitution is Article XVIII, which states unambiguously that: (1) there are two categories of changes to the document: “amendments” and “revisions,” and (2) only amendments can originate via voter initiatives; revisions must originate in the legislature (by two-thirds vote, incidentally).

Therefore, if Proposition 8 is a “revision” rather than an “amendment,” then the entire process of its enactment was void ab initio, the vote was not legitimate and the ban is nullified. QED

The problem, however, is that the California Constitution provides no guidance regarding what is a “revision” and what is an “amendment.” And, as one might expect, the question is not one that comes up very often. There are very few cases on the subject, they are all rather old, and none are entirely on point.

The petitioners make two mutually reinforcing arguments that Proposition 8 is a “revision” rather than an “amendment.”

1. Proposition 8 forces the court to define “equal protection” in a certain way in a certain context (i.e., same-sex marriage). But it is, both traditionally and explicitly, the exclusive role of the courts to interpret equal protection clauses (both in the federal and state constitutions). To change the core role of the courts so radically is, the petitioners posit, surely a “revision” within the context of Article XVIII. This is the stronger of the two arguments. It is the exclusive role of the courts to decide what “equal protection” means; it is simply not a topic that can be submitted to the voters, at least not without first going through the legislature.

2. Proposition 8 violates the separation of powers doctrine by diminishing the general power of the courts to engage in judicial review and to protect political minorities. The California Supreme Court has already declared sexual orientation a suspect class entitled to heightened scrutiny. Yet the initiative process that produced Proposition 8 revokes a right of that suspect class by a mere majority of voters. Therefore Proposition 8 strips the court of its intrinsic power — the power to declare a suspect class — in an impermissible way. Such a fundamental reworking of the functioning of courts must, the petitioners insist, come via a revision.

Bottom line, I find the brief an impressive and persuasive statement of normative statecraft — what constitutions should do and how constitutional amendment processes ought to work, especially in a regime where the role of judges to protect insular minorities from the majoritarian mob is celebrated rather than damned.

But as a positive statement of what the California Constitution actually is and how a bigot amendment may and may not be enacted? It is, quite frankly a tough sell that requires a great deal of bootstrapping from weak precedential arguments.

I hope the same California Supreme Court judges who rose to the occasion can find the strength to once again stand athwart and yell Stop! But I won’t damn them if they can’t.

Other hasty stitches:

–The litigation, in abstract terms, is not “No on 8 v. Yes on 8″ but rather “Gays v. The California Government.” It is not clear whether the bigots are entitled to intervene in the litigation or even file amicus briefs. It is also not clear to what extent the state (represented I’m supposing by attorney general Jerry Brown) is obligated to “vigorously” defend the amendment. Theoretically, Brown (or Schwarzenegger or whoever) could just phone it in and essentially say, in dressed-up terms, “Go ahead and strike it down — fine with us.” (I’m of course approaching this question in judicial rather than political terms.)

–Speaking of Jerry Brown, he has already expressed his position that same-sex marriages entered into before the election will remain valid. That goes against the plain text of the amendment, but avoids different constitutional difficulties. Let’s see how the bigots react to Brown’s announcement.

The case is Strauss v. Horton, No. S168047 (Supr. Ct. Cal., November 5, 2008) (PDF – 64 pages)

More thoughts at Dorf on Law.

Previously:
–And the Culture Wars Go On…
–On the California Gay Marriage Decision