OutRight: Marriage Revisionism

There is a constitutionally based reason to overturn California’s Proposition 8

By Dale Carpenter

DaleColorOn March 5, the California Supreme Court heard arguments about whether Proposition 8, which banned same-sex marriage in the state, is valid. Even if you oppose gay marriage, and even if (like me) you support it but question last May’s decision declaring a right to it, there’s good reason to invalidate Prop 8. That’s because the root issue in the case is deeper than same-sex marriage. It goes to the heart of what it means to live in a democratic polity whose decisions are both substantively and procedurally bounded by a constitution.

The California Constitution recognizes two types of changes: “revisions” and “amendments.” A “revision” can be enacted only through approval by two-thirds of each state house, followed by a majority vote of the people. “Amendments” can be enacted by simple majority vote of the people, without prior legislative approval. The harder process to enact a revision suggests that it is reserved for extraordinary matters requiring more deliberation and social consensus than an ordinary amendment. If Prop 8 was actually a revision, it cheated the constitutional design by going through the comparatively easy amendment process.

So which is it? The California state constitution itself tells us nothing about which route must be followed for a particular proposed change. The distinction between revision and amendment is rare in state constitutions, and completely foreign to the U.S. Constitution.

History offers little guidance. The easier amendment route was created in the early 20th century as a populist, progressive reform to combat the power of wealthy corporate interests over the California legislature. Whatever else can be said of them, neither side in the gay-marriage debate is controlled by robber barons. While the people obviously wanted a method of constitutional change that avoided the legislature, it’s equally obvious that some changes still require prior legislative approval.

The court’s own precedents don’t directly answer the question. In the past, the California Supreme Court has said that a proposed change can be so voluminous that it requires the more laborious revision process. Prop 8 added only 14 words to the state constitution.

The court has also said that a change can be so “qualitatively” significant that it constitutes a revision. A proposal to instruct the state legislature how much to spend annually on environmental protection is an amendment. But a proposal to limit the ability of the state courts to protect multiple rights of criminal defendants was held to be a revision. Prop 8 dealt only with defining marriage, which is certainly important, but leaves intact California’s extensive gay-rights laws, including its comprehensive recognition of same-sex domestic partnerships.

So past cases have labeled changes “revisions” if they are voluminous or alter the basic structure of state government, including the court’s own role in monitoring the protection of a broad swath of rights. But if the underlying concern is that some changes should require more deliberation and consensus, why limit the analysis to those narrow instances?

Critics will say that overturning Prop 8 would be unprecedented. And they’re right. But that is only because Prop 8 itself is unprecedented in California—or in any other state. To see why, forget about same-sex marriage for a moment.

Suppose a majority of the people decide that Mormons are exercising disproportionate influence in the political system. So they change the state constitution to deny Mormons, and Mormons alone, the right to make contributions to ballot fights.

Or suppose a majority of the people decide too many blacks aren’t taking marriage seriously. So they vote to deny blacks, and blacks alone, the right to marry. Putting aside the questionable validity of such changes under the federal constitution, would they be “amendments” or “revisions” to the California Constitution?

Back to Prop 8. Under the California Supreme Court’s marriage decision, marriage is as fundamental for gays as it is for blacks and as important for them as political speech is for Mormons. Additionally, discrimination against gays is as judicially questionable as it would be against racial or religious minorities.

There are solid reasons to think last May’s decision was judicial overreach. But unless the decision is reversed, which is unlikely, the conscientious constitutional objector is left to consider the larger implications of allowing a fundamental right to be stripped from a vulnerable minority.

Even rights that the objector agrees are fundamental could be taken away, and even groups that he agrees need special judicial 
protection could be assaulted, in a future constitutional amendment, by a simple majority. If it’s acceptable in this case, it should be acceptable in future ones.

Neither side doubts that courts are empowered to determine whether a change is a revision or an amendment. When in doubt, perhaps the court should follow the “will of the people,” as legal supporters of Prop 8 argue.

But which “will”? The will expressed by any simple majority at any given time on any issue of sufficient brevity or discreteness? Or the enduring will expressed by the people themselves in their constitution, as interpreted by their courts, requiring extraordinary procedures for extraordinary changes targeting three percent of the population?

Gay marriage can be banned in a revision to the state constitution. After all, the people are entitled to govern themselves. But only under the rules they have enacted. And the best understanding of those rules suggests they were violated by Prop 8.

Writing from the conservative side, Dale Carpenter began his column for OutSmart in 1994, when he lived in Houston. Now residing in Minneapolis, Carpenter is a University of Minnesota Law School professor.

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