BILL ANALYSIS
HR 5
Page 1
Date of Hearing: February 17, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
HR 5 (Ammiano) - As Amended: February 12, 2009
SUBJECT : CIVIL RIGHTS: EQUAL MARRIAGE RIGHTS: PROPOSITION 8
KEY ISSUE : SHOULD THE ASSEMBLY MEMORIALIZE ITS OPPOSITION TO
PROPOSITION 8 BECAUSE, AMONG OTHER REASONS, THIS PROPOSITION
WAS, ACCORDING TO THIS RESOLUTION'S PROPONENTS, "AN IMPROPER
REVISION, NOT AN AMENDMENT, OF THE CALIFORNIA CONSTITUTION AND
WAS NOT ENACTED ACCORDING TO THE PROCEDURES REQUIRED BY ARTICLE
XVIII OF THE CALIFORNIA CONSTITUTION"?
SYNOPSIS
This resolution addresses one of the most significant civil
rights issues in the history of California, namely, whether the
initiative process may be used to deprive a group defined by a
suspect classification of a fundamental and inalienable right.
The California Supreme Court held on May 15, 2008, in its
landmark In re Marriage Cases decision that under this state's
Constituion, gay and lesbian couples have the same fundamental
right to marry as other Californians. In its decision, the
Supreme Court held, "the California legislative and initiative
measures limiting marriage to opposite-sex couples violate the
state constitutional rights of same-sex couples and may not be
used to preclude same-sex couples from marrying." The Court
also held that laws directed at gays and lesbians are subject to
the highest level of constitutional review ("strict scrutiny")
and that marriage is a fundamental right. Also importantly, the
Court's ruling established that any law discriminating on the
basis of sexual orientation is constitutionally suspect, making
California the first state in the country to recognize sexual
orientation as a "suspect classification."
Shortly after the Supreme Court's decision, Proposition 8, which
had been submitted prior to the decision, was certifed by the
Attorney General. Proposition 8 sought to change California's
Constitution by restricting the definition of marriage to
opposite-sex couples only, seeking to override the Supreme
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Court's holding and eliminate same-sex couples' right to marry.
Proposition 8 passed by a vote of 52-48 percent in the November
4, 2008 general election. Thereafter, various litigation
responses ensued by both supporters and opponents, including a
petition by opponents asking the California Supreme Court to
hold that Proposition 8 was not a valid initiative because it
constituted an attempted revision, not amendment, of the
California Constitution, and therefore did not properly follow
the strict procedural requirements contained in Article XVIII of
the California Constitution.
Also, sixty-five current and former members of the California
Legislature filed an amicus brief in support of Proposition 8's
opponents, concurring that the constitutional change required by
Proposition 8 is so fundamental to our system of government that
it first requires the unique, deliberative role of the
Legislature. In their brief to the Court, these legislators
reiterated that fundamental changes to the state's Constitution
cannot be accomplished by a simple vote of the majority. The
Supreme Court is set to hear the petition by opponents seeking
the invalidation of Proposition 8 on March 5, 2009.
This resolution succinctly summarizes the arguments that
Proposition 8 was an invalid effort at constitutional revision,
and notes the Assembly's opposition to Proposition 8 on this
ground as well as others, including that Proposition 8 would
violate the separation of powers doctrine by "intruding on the
vital role of the Legislature in vetting revisions to the
California Constitution and by sidestepping the constitutionally
required rigors of the legislative process."
SUMMARY : States that the Assembly opposes Proposition 8
because, among other reasons, it is an improper revision, not an
amendment, of the California Constitution and was not enacted
according to the procedures required by Article XVIII of the
California Constitution. Specifically, this measure makes a
host of findings, which include that:
1)Article XVIII provides that, while a proposed amendment to the
California Constitution can be accomplished through the
initiative process, a proposed revision of the California
Constitution must originate in the Legislature and must be
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approved by a two-thirds vote of each house of the Legislature
before being submitted to the electors;
2)The California Supreme Court, in Livermore v. Waite (1894) 102
Cal. 113 and subsequent decisions, has held that a revision is
a substantial change to the "underlying principles" of the
California Constitution or to the structure of our "basic
governmental plan";
3)Subdivision (a) of Section 8 of Article II of the California
Constitution defines the initiative power as the ability to
propose and pass statutory laws and constitutional amendments,
but not constitutional revisions;
4)The distinct procedures mandated for revision and amendment of
the California Constitution, and the crucial deliberative role
of the Legislature in any proposed revision of our
Constitution, constitute key structural checks in the system
of checks and balances mandated by Article III of the
California Constitution;
5)The principle of equal protection, which prohibits unequal
government treatment of historically targeted minority groups
and ensures that laws enacted by a majority must apply equally
to all people, is a foundational principle underlying our
Constitution and our democratic system of government;
6)Proposition 8 would severely undermine the foundational
principle of equal protection by establishing that any
disfavored minority can be targeted to have its fundamental,
inalienable rights stripped away by a simple majority vote;
7)Proposition 8 would also violate the separation of powers
doctrine by intruding on the vital role of the Legislature in
vetting revisions to the California Constitution and by
sidestepping the constitutionally required rigors of the
legislative process.
EXISTING LAW :
1)Provides, pursuant to the California Supreme Court's landmark
decision on May 15, 2008, in In re Marriage Cases ((2008) 43
Cal.4th 757), that, applying the most stringent legal test of
strict scrutiny, "the California legislative and initiative
measures limiting marriage to opposite-sex couples violate the
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state constitutional rights of same-sex couples and may not be
used to preclude same-sex couples from marrying." Further
provides that any law discriminating on the basis of sexual
orientation is constitutionally suspect. (Id. at 840-841.)
2)Provides, in Article XVIII, that a proposed revision of the
California Constitution must originate in the Legislature, and
must be approved by a two-thirds vote of each house of the
Legislature before being submitted to the electors for
approval.
3)Provides, in the California Constitution's Equal Protection
Clause, in Article I, Section 7, that:
(a) "A person may not be deprived of life, liberty, or
property without due process of law or denied equal
protection of the laws. . ."; and
(b) "A citizen or class of citizens may not be granted
privileges or immunities not granted on the same terms to all
citizens."
4)Provides, in the California Constitution's Declaration of
Rights, in Article I, Section 1, that "All people . . . have
inalienable rights. Among these are enjoying and defending
life and liberty, acquiring, possessing, and protecting
property, and pursuing and obtaining safety, happiness, and
privacy."
FISCAL EFFECT : As currently in print this resolution is keyed
non-fiscal.
COMMENTS : This resolution addresses one of the most
significant civil rights issues in the history of California,
namely, whether the initiative process may be used to deprive a
group defined by a suspect classification of a fundamental and
inalienable right. The California Supreme Court held on May 15,
2008, in its landmark In re Marriage Cases decision that under
this state's Constituion, gay and lesbian couples have the same
fundamental right to marry as other Californians. In its
decision, the Supreme Court held, "the California legislative
and initiative measures limiting marriage to opposite-sex
couples violate the state constitutional rights of same-sex
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couples and may not be used to preclude same-sex couples from
marrying." The Court also held that laws directed at gays and
lesbians are subject to the highest level of constitutional
review ("strict scrutiny") and that marriage is a fundamental
right. Also importantly, the Court's ruling established that
any law discriminating on the basis of sexual orientation is
constitutionally suspect, making California the first state in
the country to recognize sexual orientation as a "suspect
classification."
Following the Supreme Court's decision, the Attorney General
certified Proposition 8, which sought to change the California
Constitution by restricting the definition of marriage to
opposite-sex couples only, seeking to override the Supreme
Court's holding and thereby eliminate same-sex couples' right to
marry. Proposition 8 subsequently passed by a vote of 52-48
percent in the November 4, 2008 general election. Thereafter
various procedural litigation responses ensued by both
supporters and opponents of the measure, including a petition
filed by opponents asking the California Supreme Court to hold
that Proposition 8 was not a valid initiative because it
constituted an attempted revision, not amendment, of the
California Constitution, and therefore did not properly follow
the strict procedural requirements contained in Article XVIII of
the California Constitution. The Supreme Court is set to hear
this petition on March 5, 2009.
This resolution succinctly summarizes the arguments underlying
the assertion that Proposition 8 was an invalid effort at
constitutional revision, and notes the Assembly's opposition to
Proposition 8 on this ground as well as other grounds, including
that Proposition 8 would violate the separation of powers
doctrine by "intruding on the vital role of the Legislature in
vetting revisions to the California Constitution and by
sidestepping the constitutionally required rigors of the
legislative process."
In support of the resolution, the author states:
HR 5 would specify that significant revisions to the
California Constitution mandate distinct procedures
and require a two-thirds vote of each house of the
Legislature before going to the voters. It would put
the Assembly on record that Proposition 8 did not
follow the proper process and should be overturned as
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an invalid revision to the California Constitution.
HR 5 would safeguard the integrity of our
constitutionally required checks and balances and help
to ensure that minority rights are not stripped away
at the ballot box by a simple vote of the majority.
California's Initial Recognition of Same-Sex Couples : The issue
of legal recognition of same-sex couples in California dates
back two decades. Before the 1980s, same-sex couples had no
legal recognition in California, or virtually anywhere else-as
families, they were essentially invisible to the law. Beginning
in the mid-1980's, local jurisdictions began to recognize
same-sex couples by establishing a legal status called "domestic
partnership," which gave same-sex couples not only limited
protections for themselves and their children, but also, for the
first time, government recognition as family units. By 2000,
eighteen California local governments had established domestic
partnership registries.
Registered Domestic Partnerships: California took notice of
this emerging movement to recognize the rights of same-sex
couples. In 1999, the Legislature enacted AB 26 (Migden), Ch.
588, Stats. of 1999, to create the state's first domestic
partnership statute. This statute, which forms the backbone of
California's domestic partnership law, provided for domestic
partnerships to be registered with the Secretary of State, for
public employers to offer health benefits to domestic partners,
and for domestic partners to have hospital visitation rights.
While the Legislature continued to expand these rights, the most
comprehensive set of rights and responsibilities for registered
domestic partners was enacted in 2003 by AB 205 (Goldberg), Ch.
421. That bill became fully operative on January 1, 2005, and
it has been upheld by the courts against challenges. (See,
e.g., Knight v. Superior Court (2005) 128 Cal. App. 4th 14, 30.)
However, although domestic partnership laws extended many
protections to same-sex couples, their protections differ
markedly from those extended to married couples. First, under
the existing laws, domestic partners are denied access to
certain long-term care benefits that are available to married
couples. In addition, the prerequisites for entering a domestic
partnership differ from the prerequisites for marriage.
Marriage and domestic partnership also have different formation
and termination procedures. For example, unlike marriage,
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domestic partnership has no solemnization requirement, a
difference that suggests a distinction in stature. Finally,
domestic partners are denied the protections available under
more than 1,100 federal statutes relating to marriage.
The Federal DOMA : In 1996 Congress passed, and President
Clinton signed, the federal Defense of Marriage Act (DOMA),
which includes the provision that no state is required under
federal law to give effect to a same-sex marriage contracted in
another state.
California's Proposition 22 : A group of citizens led by the
late State Senator William J. ("Pete") Knight placed an
initiative on the March 2000 California ballot to prohibit
California from recognizing same-sex marriages. The Proposition
22 ballot materials emphasized the prospect that California
might soon be required to recognize the out-of-state marriages
of same-sex couples. The measure passed with 61% of the vote
and became codified as Section 308.5 of the Family Code.
Other States' Laws Enacted in Light of the Federal DOMA : In
light of the federal DOMA, other states have also enacted
measures prohibiting recognition of marriages entered into by
same-sex couples in other jurisdictions. Some states have gone
so far as to enact into their constitutions provisions that
purport to prohibit recognition of relationships between
same-sex couples other than marriage, such as domestic
partnerships or civil unions.
Massachusetts Marriage Rulings : The Massachusetts Supreme
Judicial Court ruled in November 2003 that laws prohibiting
marriage between persons of the same sex violate the
Massachusetts Constitution. Noteworthy portions of the court's
opinion include:
The marriage ban works a deep and scarring hardship on
a very real segment of the community for no rational
reason? The Constitution cannot control such
prejudices but neither can it tolerate them. Private
biases may be outside the reach of the law, but the
law cannot, directly or indirectly, give them effect.
Limiting the protections, benefits, and obligations of
civil marriage to opposite-sex couples violates the
basic premises of individual liberty and equality
under law protected by the Massachusetts Constitution.
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(Emphasis added and citation omitted.)
Three months later, in February 2004, acting on a request from
the Massachusetts Legislature, the Supreme Judicial Court issued
an advisory opinion stating: "The history of our nation has
demonstrated that separate is seldom, if ever, equal." Even
where a state grants substantially similar rights to same-sex
"civil unions," the Court found that refusing to recognize these
unions as "marriage" is a "considered choice of language that
reflects a demonstrable assigning of same-sex, largely
homosexual, couples to second-class status." To permit such a
distinction would amount to "maintaining and fostering a stigma
of exclusion that the Constitution prohibits."
San Francisco Response to Massachusetts Ruling : In February
2004, the City and County of San Francisco began issuing
marriage licenses to same-sex couples. However, on March 11,
2004, after 4,037 same-sex couples were married, the California
Supreme Court ordered San Francisco to stop issuing marriage
licenses to same-sex couples while the Court considered the
legality of San Francisco County's actions. On August 12, 2004,
the California Supreme Court unanimously ruled that San
Francisco officials exceeded their authority in issuing the
licenses because it is the role of the courts, not local
officials, to determine the constitutionality of the state's
marriage laws. By a 5-2 vote, the Court also invalidated the
4,037 marriages that had taken place in San Francisco. The
Court did not rule on the constitutionality of the state's
statutory prohibition of marriage by same-sex couples. Rather,
an order filed by the Court in March 2004 expressly invited the
filing of a lawsuit in Superior Court to address this issue,
which occurred thereafter (see "Coordinated Marriage Cases"
discussion below).
AB 849, First Such Bill to Pass in the Country: After AB 19,
Senator Leno's first legislative attempt to permit same-sex
couples to marry, passed this Committee but failed passage on
the Assembly floor in June of 2005, Senator Leno revived his
bill as AB 849, which became the first such bill in the nation
to be passed by both houses of a state legislature. However, on
September 29, 2005, Governor Schwarzenegger vetoed the bill.
The Governor suggested that the only way the law could be
changed is if the courts voided the ban as unconstitutional, or
if the people reversed Proposition 22 through another initiative
or a referendum. Senator Leno nevertheless reintroduced the
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measure in 2007 as AB 43, and the Governor once again vetoed the
bill, stating it was up to the Supreme Court to decide if the
state's ban on same-sex marriage was constitutional. This
happened the very next year.
Coordinated Marriage Cases : Supreme Court Decision : On May 15,
2008, the California Supreme Court, in a 4-3 decision, struck
down as unconstitutional the California statutes limiting
marriage to a man and a woman. The majority opinion concluded
that "the California Constitution properly must be interpreted
to guarantee this basic civil right to all Californians, whether
gay or heterosexual, and to same-sex couples as well as to
opposite-sex couples." (Id. at 782 (footnote omitted).) In
reaching its conclusion, the majority discussed and analyzed a
number of complex legal arguments with respect to the statutory
and constitutional provisions at issue.
Family Code Section 308.5 - Scope of Statutory Ban : First, the
Court found that Family Code section 308.5, the statutory ban on
same-sex marriage implemented by Proposition 22 in 2000, could
not properly be interpreted to apply to only marriages performed
outside of California. The Court noted that serious
constitutional problems would be presented if section 308.5 were
to be interpreted as creating a distinct rule for out-of-state
marriages as contrasted with in-state marriages.
Constitutional Right to Marry : Second, the Court found that
"[a]lthough our state Constitution does not contain any explicit
reference to a 'right to marry,' past California cases establish
beyond question that the right to marry is a fundamental right
whose protection is guaranteed to all persons by the California
Constitution." (Id. at 809.) The core substantive rights
embodied in the right to marry "include, most fundamentally, the
opportunity of an individual to establish - with the person with
whom the individual has chosen to share his or her life - an
officially recognized and protected family possessing mutual
rights and responsibilities and entitled to the same respect and
dignity accorded a union traditionally designated as marriage."
(Id. at 781.) The Court noted that "in contrast to earlier
times, our state now recognizes that an individual's capacity to
establish a loving and long-term committed relationship with
another person and responsibly to care for and raise children
does not depend upon the individual's sexual orientation, and,
more generally, that an individual's sexual orientation - like a
person's race or gender - does not constitute a legitimate basis
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upon which to deny or withhold legal rights." (Id. at 782.)
Accordingly, the Court concluded that "in light of the
fundamental nature of the substantive rights embodied in the
right to marry - and their central importance to an individual's
opportunity to live a happy, meaningful, and satisfying life as
a full member of society - the California Constitution properly
must be interpreted to guarantee this basic civil right to all
individuals and couples, without regard to their sexual
orientation." (Id. at 820, emphasis added.)
Although the opinion acknowledges that the recent comprehensive
domestic partnership legislation enacted in California affords
same-sex couples most of the substantive elements embodied in
the constitutional right to marry, the opinion further concludes
that by assigning a different name for the family relationship
of same-sex couples, while preserving the historic and honored
designation of "marriage" only for opposite-sex couples, the
California statutes threatened to deny the family relationship
of same-sex couples dignity and respect equal to that accorded
the family relationship of opposite-sex couples.
Equal Protection : Third, the majority opinion addressed whether
the statutory assignment of different labels for the official
family relationship of opposite-sex couples and same-sex couples
raises constitutional concerns under the California
Constitution's Equal Protection Clause. The Court concluded
that the "strict scrutiny" standard was applicable in this case
(1) because the statutes discriminate on the basis of sexual
orientation, a characteristic the majority determined to be -
like gender, race, and religion - a constitutionally suspect
basis upon which to impose differential treatment, and (2)
because the different statutory treatment impinges upon same-sex
couples' fundamental interest in having their family
relationship accorded the same respect and dignity enjoyed by
opposite-sex couples.
To survive strict scrutiny, a law must be necessary to serve a
compelling government interest. The majority found that the
California statutes failed both parts of this test. The
majority determined that the state interest underlying the
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marriage statutes' differential treatment of opposite-sex and
same-sex couples - the interest in retaining the traditional and
well-established definition of marriage - cannot properly be
viewed as a compelling state interest for purposes of the Equal
Protection Clause, or as necessary to serve such an interest,
and, thus, the statutes were unconstitutional.
Seemingly importantly for this resolution, the Court stated,
"the provisions of the California Constitution itself constitute
the ultimate expression of the people's will, and that the
fundamental rights embodied within that Constitution for the
protection of all persons represent restraints that the people
themselves have imposed upon the statutory enactments that may
be adopted either by their elected representatives or by the
voters through the initiative process." (Id. at 852.) In other
words, the Court seemed to be noting, even though a law was
enacted through the initiative process, it is still subject to
constitutional review by the courts.
Dissenting Opinions : Both Justice Baxter and Justice Corrigan
wrote dissenting opinions. Justice Baxter determined that the
deferential rational basis test, rather than strict scrutiny,
should apply to the distinction drawn between opposite-sex and
same-sex couples by the marriage and domestic partnership
statutes and concluded there are ample grounds for upholding the
assignment of a name other than marriage to unions of same-sex
couples. (Id. at 878.) Justice Corrigan stated at the outset
of her dissent that, although in her view Californians should
allow same-sex couples to call their unions marriages, she had
to acknowledge that "a majority of Californians hold a different
view, and have explicitly said so by their vote." (Id. at 878.)
Justice Corrigan further found that the Court's ruling exceeded
the bounds of judicial authority.
Proposition 8 Procedural History : On October 5, 2007, the
proponents of Proposition 8, apparently contemplating that the
California Supreme Court might find the state's discriminatory
marriage provisions unconstitutional, began the legal process of
proposing an initiative amendment to add to the California
Constitution the provision that in California marriage could
only be between one man and one woman. Then, as noted above, on
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May 15, 2008, the Court issued its decision in the Marriage
Cases, holding that statutes limiting "marriage to a union
'between a man and a woman' [are] unconstitutional." (Marriage
Cases, supra, 43 Cal.4th 857.) On May 22, 2008, the Proposition
22 Legal Defense & Education Fund and others requested a stay of
the effective date of the Marriage Cases decision until after
the vote on Proposition 8. The Court denied the request on June
4, 2008, and on June 16, 2008 the Marriage Cases decision took
effect.
Immediately after Proposition 8 narrowly passed on November 4,
2008, opponents of Proposition 8 filed a petition directly with
the California Supreme Court seeking to invalidate the measure
on the grounds that it was not permissibly enacted. On November
19, 2008, the Court denied the request for a stay on Proposition
8, granted the proponents' motion to intervene, and directed the
parties to brief the constitutional issues addressed in this
resolution. The Supreme Court is set to hear this petition on
March 5, 2009.
SOME OF THE KEY LEGAL ISSUES RAISED BY THIS RESOLUTION :
Amendment-Revision Distinction : The California Constitution may
be changed in two distinct ways: by amendment and by revision.
The Constitution may be amended by the voters of California
through the initiative process. (Cal. Const. Art. XVIII, Sec.
3.) Additionally, it may be amended by a two-thirds vote of the
Legislature, followed by a majority vote of the electorate.
(Cal. Const. Art. XVIII, Sec. 1, 4.) A revision to the
Constitution, by contrast, cannot be initiated by the voters. A
revision requires a two-thirds vote of the Legislature to
propose a measure to the electorate, who may then approve the
revision by majority vote. Alternatively, the Legislature by a
two-thirds vote may submit a question to the electorate calling
for a constitutional convention. If the convention measure is
approved by the voters, the delegates may then propose a
constitutional revision, which may then be put to the electorate
for approval by majority vote. (Cal. Const. Art. XVIII, Sec. 1,
2, 4.)
Key to the current debate over Proposition 8's validity, our
state constitution is silent as to what constitutes a revision
or an amendment. The California Supreme Court has held that a
revision substantially alters either "the underlying principles
upon which [the Constitution] rests" or the "substantial
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entirety of the instrument," while an amendment is "such an
addition or change within the lines of the original instrument
as will effect an improvement, or better carry out the purposes
for which it was framed." (Livermore v. Waite (1894) 102 Cal.
113, 117-119.) Whether a change to the Constitution is an
amendment or a revision requires an examination of "both the
quantitative and qualitative effects of the measure on our
constitutional scheme." (Raven v. Deukmejian (1990) 52 Cal.3d
336, 350, emphasis added.)
The Court has made clear that substantial changes in either the
quantitative or qualitative effect of a measure could amount to
a revision. (Id.) Moreover, the Court has held that even a
"relatively simple enactment" can make significant changes in
the "nature of our basic governmental plan" so as to constitute
a revision. (Amador Valley Joint Union High School Dist. v.
State Bd. of Equalization (1978) 22 Cal.3d 208, 223.)
As the Court has noted, the difference between the two
procedures is essential to protect the integrity of our
constitution. While the initiative process is relatively simple
and can be accomplished quite quickly, the more complicated
revision process is "based on the principle that 'comprehensive
changes' to the Constitution require more formality, discussion
and deliberation than is available through the initiative
process." (Legislature v. Eu (1991) 54 Cal.3d 492, 506.)
Proposition 8 Opponents Argue That The Initiative Amounts To A
Constitutional Revision That May Not Be Accomplished Through The
Initiative Process . Proposition 8, opponents contend, denies a
fundamental right - the right to marry - to a group, gay and
lesbian people, that the Supreme Court has found to be a group
historically "subjected to invidious and prejudicial treatment"
based on a suspect classification. (Marriage Cases at 804.)
Opponents argue that by excluding a group defined by a suspect
classification from a fundamental right, the initiative can only
be deemed a revision because it so qualitatively alters the
Constitution's guarantee of equal protection of the laws,
including the guarantee that "inalienable rights" belong to "all
people." If such a broad change to the Constitution could be
accomplished through the initiative process, they contend that
any unpopular group can be stripped of any fundamental right by
a simple majority of the electorate, contrary to the core
principles of a republican government. Proposition 8 opponents
argue that the Court would not be thwarting the will of the
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voters by finding Proposition 8 to be a revision to the
Constitution, but would instead be enforcing the "ultimate
expression of the people's will" - the Constitution. (Marriage
Cases at 852.)
Sixty-Five Current And Former Members Of The California
Legislature Filed An Amicus Brief In Support Of Proposition 8's
Opponents, Concurring That The Constitutional Change Required By
Proposition 8 Is So Fundamental To Our System Of Government That
It First Requires The Unique, Deliberative Role Of The
Legislature . In their brief to the Court, these legislators
reiterate that fundamental changes to the state's Constitution
cannot be accomplished by a simple vote of the majority. They
argue instead that, throughout its more than 150 years of
existence, the California Constitution has always given the
Legislature the sole responsibility for initiating any
fundamental changes to that document. This responsibility, they
contend, reflects the Legislature's unique deliberative role
that allows for "bicameralism, legislative debate,
investigation, study and compromise to carefully assess
fundamental changes to California's Constitution." (Brief of
Legislative Amici Curiae at 2.) Proposition 8 by contrast, they
contend, seeks to allow a simple majority to deprive a suspect
class of a fundamental right without that deliberative
legislative process. Moreover, the proposition, again by simply
majority vote, strips from the courts any ability to use the
Equal Protection Clause to protect the fundamental rights of
minorities. These fundamental changes to the Constitution,
argue the legislators, can only be implemented through the
revision process, not through a simple amendment to the
Constitution.
Supporters Of Proposition 8 Counter That The Initiative Is
Simply An Amendment To The Constitution And Was Thus Properly
Established Through The Initiative Process . They assert that
the people of California have reserved for themselves the right
to amend the Constitution by initiative and that such power must
be liberally construed. "It is our solemn duty jealously to
guard the sovereign people's initiative power, it being one of
the most precious rights in our democratic process." (citing
Brosnahan v. Brown (1982) 32 Cal.3d 236, 241.)
Supporters also argue that the initiative measure does not
quantitatively or qualitatively alter the Constitution, but that
its 14 words merely restore the definition of marriage as it was
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before the Marriage Cases decision. Supporters contend that
while it excludes same-sex couples from marriage, the
proposition does not impact any other legal rights. Moreover,
supporters argue, the fact that equal protection is at issue
does not mean that such changes cannot be accomplished by
constitutional amendment. Supporters point to prior cases,
arguing that the Court has never found a constitutional right
that was beyond the people's initiative power and, therefore,
changes affecting the Equal Protection Clause should be no
different. If nothing else, Proposition 8 supporters argue, the
federal Constitution will still protect and limit the harm that
the majority can seek to force on any minority group through the
initiative process.
Opponents counter that the proponents' reliance on the federal
Constitution to protect groups defined by suspect
classifications from the will of the majority is irrelevant to
the California Constitution. Not only does the federal
Constitution have no bearing on the state law question being
considered by the state Supreme Court, they note, but the Court
has on numerous occasions provided greater protection to
fundamental rights under the California Constitution than has
been recognized under the federal Constitution.
On Behalf Of The State, The Attorney General Argues That
Proposition 8 Is Unconstitutional For Reasons Other Than the
Revision/Amendment Distinction . In weighing into this debate,
the Attorney General states he does not find that Proposition 8
is a revision of the Constitution. Instead, the Attorney
General finds that Proposition 8 is unconstitutional for a
separate reason, not based on the revision/amendment
distinction. Noting that the right to marry is an aspect of
fundamental liberty as recognized by a long line of cases, the
Attorney General states: "At bottom, the question is whether
rights secured under the state Constitution's safeguard of
liberty as an 'inalienable' right may intentionally be withdrawn
from a class of persons by an initiative amendment. ? [T]his
litigation, perhaps for the first time, poses a more fundamental
question: Is the initiative-amendment power wholly unfettered by
the California Constitution's protection of the People's
fundamental right to life, liberty, and privacy?" (Answer Brief
In Response to Petition at 77) (original emphasis).) The
Attorney General concludes "that the initiative power could
never have been intended to give the voters an unfettered
prerogative to amend the Constitution for the purpose of
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depriving a disfavored group of rights determined by the Supreme
Court to be part of fundamental human liberty."
This conclusion stems from the recognition that both the 1849
and 1879 Constitutional Conventions declared liberty to be one
of the inalienable rights secured by Section 1 of the
Declaration of Rights in Article I of the California
Constitution. The Framers' purpose in declaring certain rights
to be "inalienable," the Attorney General observes, was to place
those fundamental rights of citizens beyond the power of the
Legislature or the Executive to abrogate because "it was
generally believed as a matter of political philosophy that a
constitution is not the source of these rights. The rights
'antedate' the constitution as inherent in human nature, and the
constitution is the covenant by which Society secures those
inherent freedoms to itself. These rights were not surrendered
in the 'social compact.'" Rather, the protection of these
rights was one of the very purposes of the Constitution.
According to the Attorney General, "the Framers (and the People
in adopting the Constitution) intended Article I, Section 1 [the
Declaration of Rights] to act as a check on legislative
excesses. Given that protective purpose, the Framers (and the
People) would not have endowed the Legislature with the power to
eliminate a judicially recognized fundamental liberty interest
through a constitutional amendment passed by popular vote -- at
least not without a compelling reason for doing so." (Answer
Brief at 84.)
Echoing opponents of Proposition 8, the Attorney General goes on
to argue that the Framers did not intend to subject the rights
of individuals or groups under Article I to abrogation by
popular vote because it would create a tyranny of the majority.
Quoting both an opinion of the California Supreme Court, and
similar statements by the United States Supreme Court in
decisions dating back to 1874, the Attorney General comments:
"Our government is a representative republic; not a simple
democracy. Whenever it shall be transformed into the latter -
as we are taught by the examples of history - the tyranny of a
changeable majority will soon drive honest men to seek refuge
beneath the despotism of a single ruler." (Answer Brief at 85.)
This resolution does not specifically comment on the particular
constitutional vantage point taken by the Attorney General,
though such an alternative attack on the validity of Proposition
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8, if concurred in by the Supreme Court, would equally lead to
the invalidation of the measure. And arguably, both
constitutional vantage points - those of the Attorney General
and the proponents of this resolution - are completely
consistent and share fundamental legal premises, including that
any majority of voters at a particular election cannot have
unfettered ability to abrogate the constitutionally-protected
rights of a minority under the essential fabric of the
Constitution itself.
ARGUMENTS IN SUPPORT : Many groups and individuals wrote in
support of this measure. Just one example of the strongly held
views in support of this measure is seen in the letter by the
bill's sponsor, Equality California (EQCA), which states in part
that:
Article XVIII of the California Constitution provides
that while an amendment to the Constitution can be
accomplished through the initiative process, a
revision must originate in the Legislature and must be
approved by a two-thirds vote before being submitted
to the electorate. In addition, Article III of the
California Constitution establishes separation of
powers and a system of checks and balances. Under
Article III, the courts have the ultimate authority to
interpret and enforce the principle of equal
protection, and the Legislature has a crucial
deliberative role in any proposed revision of our
Constitution? Proposition 8 would substantially alter
our basic governmental plan by eliminating equal
protection as a structural check on the exercise of
majority power and by permitting majorities to force
minority groups to fight to protect their fundamental
rights under the California Constitution at every
election.
ARGUMENTS IN OPPOSITION : Several groups also wrote in
opposition to this measure. The Concerned Women for America
notes that the "mere 14 words defining marriage through a
constitutional amendment, as 29 other states have already done,
hardly rise to the level of a revision of the constitution. In
fact, the Court has already ruled that the initiatives amending
legislative term limits and instituting the sweeping taxation
changes under Proposition 13 were not revisions."
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In addition, the Capitol Resource Family Impact opposes this
resolution because, they believe, it violates the will and vote
of the people and the California Constitution. The group writes
in opposition to the measure that:
In 2000, voters overwhelmingly approved Proposition
22, which clearly stated that marriage in California
is defined as between a man and a woman . Over 61% of
voters agreed that California will only recognize
traditional marriage.
After the California Supreme Court overturned
Proposition 22 in May of 2008, voters once again
expressed their overwhelming support for traditional
marriage by passing Proposition 8 in November 2008.
Proposition 8 added section 7.5 to Article I of the
state Constitution: "Only marriage between a man and
a woman is valid or recognized in California."
Californians have repeatedly expressed their desire to
retain the traditional definition of marriage in state
law via the constitutional initiative process.
Article 2, Section 8 of the state Constitution clearly
sets forth the initiative process as a valid means of
amending the Constitution. Proposition 8 was a proper
and constitutional amendment to the state
constitution.
We urge you to uphold the sanctity of marriage and
family by voting against HR 5. Please honor the rule
of law and the constitutional initiative process by
opposing any attempts to subvert Proposition 8's
rightful passage. We encourage you to stand with the
vast majority of Californians by voting to protect the
initiative process and traditional marriage.
REGISTERED SUPPORT / OPPOSITION :
Support
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Equality California (sponsor)
AFSCME
American Civil liberties Union (ACLU)
Anti-Defamation League
BIENESTAR Human Services, Inc.
California Communities United Institute
Children of Lesbians and Gays Everywhere (COLAGE)
City of West Hollywood
Faithful Fools Street Ministry
Glory Tabernacle Christian Center
Human Rights Campaign
National Association of Social Workers (NASW)
Palm Springs Desert Communities PFLAG Chapter
Progressive Jewish Alliance
Many individuals
Opposition
California Family Council
Capitol Resource Family Impact
Concerned Women for America of California
Pacific Justice Institute
Traditional Values Coalition
A few individuals
Analysis Prepared by : Drew Liebert / Kevin G. Baker / Leora
Gershenzon / JUD. / (916) 319-2334