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l33tminion) wrote2009-05-27 02:16 am
l33tminion) wrote2009-05-27 02:16 am
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Less Brief Words on the Prop 8 Ruling
Cross-posted from a comment of mine, here's my summary of the Prop 8 decision, condensed from the introduction of the decision here (I have yet to read beyond the introduction, the document is quite long):
1. The court rejects the petitioners' argument that the change is a constitutional revision as opposed to an amendment (the former can't be done by ballot initiative). It's not the sort of thing that requires a constitutional convention, it doesn't change the fundamental form or structure of the California government, it doesn't "abrogate" equal protection under the law but instead carves out "narrow exceptions" (not sure I buy that last distinction, though). Specifically, of the rights Marriage Cases (the earlier case that said the CA Constitution required gays be given the right to marry) required that CA provide to gay couples, only the designation of "marriage" is denied by Prop 8. That's a significant right, but was far from the only significant right affirmed by the Marriage Cases decision.*
2. The court rejects the CA Attorney General's argument that the amendment is prohibited under Article 1 of the CA Constitution, which talks about "inalienable rights", because of the "abrogation" versus "narrow exemption" argument above and (perhaps more significantly) because Article 1 doesn't say anything about constitutional amendments, so there's no argument for suggesting the article itself is immune to amendment. In other words, either Article 1 is irrelevant with regards to Prop 8, or Prop 8 amends Article 1 along with everything else in the old constitution that it contradicts. It's worth noting that there are state constitutions which specify limits to the amendment process (among other examples, MA's constitution explicitly prohibits certain parts of the constitution from being amended by ballot initiative, including constitutional protections for certain fundamental rights).
3. Given the wording of Prop 8, it doesn't apply retroactively (this is the most complicated part of their argument, it seems, and they don't say much about it in the introduction).
4. Whether Prop 8 is a good idea is not a part of the decision. If it's bad policy, the only recourse is to amend the constitution again to repeal it.
5. Whether the CA Constitution is too easy to amend is not a part of the decision. Of course, the people of CA could amend the constitution to make it harder for them to amend the constitution. (But that seems unlikely for obvious reasons.)
* It's actually really surprising just how much the court seems to be affirming the ruling in Marriage Cases in this opinion. I really can't express it better than a quote from the text itself:
Contrary to petitioners' assertion, Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple's state constitutional right of privacy and due process that was analyzed in the majority opinion in the Marriage Cases [...] Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term "marriage" for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.
I kind of doubt this is what Prop 8's supporter's intended.
1. The court rejects the petitioners' argument that the change is a constitutional revision as opposed to an amendment (the former can't be done by ballot initiative). It's not the sort of thing that requires a constitutional convention, it doesn't change the fundamental form or structure of the California government, it doesn't "abrogate" equal protection under the law but instead carves out "narrow exceptions" (not sure I buy that last distinction, though). Specifically, of the rights Marriage Cases (the earlier case that said the CA Constitution required gays be given the right to marry) required that CA provide to gay couples, only the designation of "marriage" is denied by Prop 8. That's a significant right, but was far from the only significant right affirmed by the Marriage Cases decision.*
2. The court rejects the CA Attorney General's argument that the amendment is prohibited under Article 1 of the CA Constitution, which talks about "inalienable rights", because of the "abrogation" versus "narrow exemption" argument above and (perhaps more significantly) because Article 1 doesn't say anything about constitutional amendments, so there's no argument for suggesting the article itself is immune to amendment. In other words, either Article 1 is irrelevant with regards to Prop 8, or Prop 8 amends Article 1 along with everything else in the old constitution that it contradicts. It's worth noting that there are state constitutions which specify limits to the amendment process (among other examples, MA's constitution explicitly prohibits certain parts of the constitution from being amended by ballot initiative, including constitutional protections for certain fundamental rights).
3. Given the wording of Prop 8, it doesn't apply retroactively (this is the most complicated part of their argument, it seems, and they don't say much about it in the introduction).
4. Whether Prop 8 is a good idea is not a part of the decision. If it's bad policy, the only recourse is to amend the constitution again to repeal it.
5. Whether the CA Constitution is too easy to amend is not a part of the decision. Of course, the people of CA could amend the constitution to make it harder for them to amend the constitution. (But that seems unlikely for obvious reasons.)
* It's actually really surprising just how much the court seems to be affirming the ruling in Marriage Cases in this opinion. I really can't express it better than a quote from the text itself:
Contrary to petitioners' assertion, Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple's state constitutional right of privacy and due process that was analyzed in the majority opinion in the Marriage Cases [...] Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term "marriage" for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.
I kind of doubt this is what Prop 8's supporter's intended.
no subject
They were charged with determining whether Prop 8 passed legally. They determined that it did, and that it is virtually meaningless. They may or may not be correct that it is virtually meaningless -- obviously, they did not address the possibility that they might be mistaken in the document ;-) -- but they clearly are not saying "we agree with this proposition or the sentiment behind it".
I do seem to recall, though, that the report from the Iowa decision had a strong tone of "this proposal is a bunch of bullshit, and we have based our decision thusly" whereas this report so far sounds to me like "this proposal has at least enough merit that we're not sitting here laughing at it and throwing it out the window" -- but I think it's really significant that Iowa and California might as well be two different countries for how differently their legal systems operate. Historically speaking, the whole point of the state of California is so that its citizens (including its conservative heterosexual homophobic citizens) share a substantial amount of power with the government. The point of the state of Iowa is...well, cornfields, I think. ;-)
no subject
Well, I wouldn't take it that far. The decision does reiterate that the designation of "marriage" is important (and I agree), there's a reason why the decision in Marriage Cases required allowing gay marriage and not just civil unions.
However, for those who expected that Prop 8 was overthrowing the ruling in Marriage Cases wholesale, this is really a huge Take That. It's really significant that there aren't partial dissents on that point.
This is just my personal guess, and it would be interesting to hear the justices' opinion firsthand, but: I'd expect supreme court justices to be big fans of the constitutional protection of rights, and consequently I'd expect them to be really disturbed by constitutional amendments to undo (or even carve out "narrow exceptions" to) supreme court decisions on equal protection requirements, even ones that they personally disagreed with. Therefore, I'd expect that even the conservative justices were very leery of Prop 8, even if they ultimately ruled that there was nothing technically invalid about the ballot initiative. (And I can see why they wouldn't want to make that case even if there were stronger grounds for it.)
Another thought: The argument I thought was most shaky (pending more reading) was the "narrow exceptions" versus "abrogation" of equal rights argument. But that one has some advantages, too. Specifically, it doesn't require the judges to cede that such a wholesale abrogation of rights could be done by ballot initiative. If some future constitutional amendment simply said "members of group X do not have constitutional guarantees of privacy, equal protection under the law, etc.", that could still be challenged on "revision versus amendment" grounds. It's not as absolute a position on the issue as I'd like, but given the ruling they made, they avoided ceding any more ground than absolutely necessary.