Proposition 8: The Ruling

[Thanks to Elie Mystal at Above the Law for the pointer! Read; check out the links; bookmark Law Dork, 2.0; and, if you like it, follow me @chrisgeidner on Twitter!]

The ruling of the California Supreme Court in the cases challenging the validity of Proposition 8 can be found here.  Here is an additional copy (pdf).

The court has upheld Proposition 8 as an amendment, not a revision, subject to the initiative process.  It also finds that the 18,000 same-sex marriages are valid that were conducted between the In re Marriage Cases holding and the Prop 8 vote because Prop 8 was not a retroactive amendment.

The three dissenters from the Marriage Cases — Justices Baxter, Chin and Corrigan — were joined by Justice Kennard and Chief Justice George, who authored today’s opinion, in the ruling to uphold Prop 8 and the 18,000 same-sex marriages. Justice Werdegar, essentially, concurred in the judgment, though with different (and, I’d say, more nuanced) reasoning.  Justice Moreno was the sole dissenter.

My analysis from the day of the oral arguments, borne out down to the votes cast by each justice, can be found here.  My thoughts in the hours preceding today’s decision — specifically, my advice about marriage equality advocates’ reactions to the ruling — can be found at “Anger, Leadership and Change.”

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A short take on the most important parts of the opinion are below the fold.

The Court concludes:

It is not our role to pass judgment on the wisdom or relative merit of the current provisions of the California Constitution governing the means by which our state Constitution may be altered.  (See Wright v. Jordan (1923) 192 Cal. 704, 711-712.)  In the absence of an explicit subject-matter limitation on the use of the initiative to propose and adopt constitutional amendments, and in light of the history of the relevant California constitutional provisions regarding the amendment/revision distinction and the numerous California precedents interpreting and applying that distinction, we conclude the existing provisions of the California Constitution governing amendment and revision cannot properly be interpreted in the manner advocated by petitioners.

Accordingly, we hold that Proposition 8 constitutes a constitutional amendment rather than a constitutional revision.

Slip op., at 109.

The opinion strikes out at Attorney General Jerry Brown’s argument: “The Attorney General’s argument is fundamentally flawed on a number of levels.” Id. at 122. It goes on:

[C]ontrary to the implication of the Attorney General’s assertion, the circumstance that the rights listed in article I, section 1 — and in other sections of the Constitution — are identified as “inalienable” does not signify that such rights are totally exempt from any limitation or restriction.  (See also, e.g., art. I, § 28, subd. (c) [“All students and staff of public primary, elementary, junior high and senior high schools have the inalienable right to attend campuses which are safe, secure and peaceful” (italics added)].)  This circumstance is apparent from even a cursory examination of the list of inalienable rights embodied in article I,
section 1.

Id. at 123.

As to the 18,000 same-sex marriages performed between the In re Marriage Cases ruling and the passage of Proposition 8, the Court holds:

Indeed, the absence of a very clear and unambiguous statement that the measure would have the effect of invalidating the estimated 18,000 marriages of same-sex couples that already had been lawfully entered into is particularly telling in this instance, because if this asserted effect of the measure “had been brought to the attention of the electorate, it might well have detracted from the popularity of the measure.”  (Evangelatos, supra, 44 Cal.3d at p. 1219.)

Id. at 132-33.  The Court concludes:

Under these circumstances, we conclude that interpreting Proposition 8 to apply retroactively would create a serious conflict between the new constitutional provision and the protections afforded by the state due process clause.  In the absence of a clear and unambiguous statement that the new provision is to have such an effect, the general legal guideline that requires courts to interpret potentially conflicting constitutional provisions in a manner that harmonizes the provisions, to the extent possible, further supports the conclusion that Proposition 8 properly must be interpreted to apply only prospectively.

Accordingly, applying these well-established principles of interpretation relating to the question of retroactivity, we conclude that Proposition 8 cannot be interpreted to apply retroactively so as to invalidate the marriages of same-sex couples that occurred prior to the adoption of Proposition 8.  Those marriages remain valid in all respects.

Id. at 133-34.

An interesting concurrence from Justice Werdegar:

The measure puts one solution beyond reach by prohibiting the state from naming future same-sex unions “marriages,” but it does not otherwise affect the state’s obligation to enforce the equal protection clause by protecting the “fundamental right . . . of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other official recognized family relationships.”  (Marriage Cases, supra, at p. 830.)  For the state to meet its obligations under the equal protection clause will now be more difficult, but the obligation remains.

Slip op. (Werdegar, J., concurring), at 9-10.

More interesting, though, is the only dissent, coming from Justice Carlos Moreno, in the news recently for being on President Obama’s short list for the U.S. Supreme Court seat for which Judge Sotomayor was today named.  Justice Moreno concluded:

This could not have been the intent of those who devised and enacted the initiative process.  In my view, the aim of Proposition 8 and all similar initiative measures that seek to alter the California Constitution to deny a fundamental right to a group that has historically been subject to discrimination on the basis of a suspect classification, violates the essence of the equal protection clause of the California Constitution and fundamentally alters its scope and meaning.  Such a change cannot be accomplished through the initiative process by a simple amendment to our Constitution enacted by a bare majority of the voters; it must be accomplished, if at all, by a constitutional revision to modify the equal protection clause to protect some,rather than all, similarly situated persons.  I would therefore hold that Proposition 8 is not a lawful amendment of the California Constitution.

Slip op. (Moreno, J., dissenting in part), at 25.

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About the Author

Chris Geidner is the award-winning senior political & legal reporter at BuzzFeed and has written for Metro Weekly, The Atlantic Online, The American Prospect,, Salon and other publications, as well as at his blog, Law Dork. He has appeared regularly on television commenting on current affairs, including MSNBC, PBS, HLN & Current. Prior to moving to D.C. in 2009, he served as an attorney on the senior staff at the Ohio Attorney General's Office and had earlier worked for a leading Columbus law firm. An extended biography can be found here, and you can follow him on Twitter.