Same Sex Marriage and the California Constitution

By VIKRAM DAVID AMAR
Friday, Apr. 02, 2004

Someday in the not-too-distant future, California courts will have to decide whether to strike down California's current marriage statutes - which prohibit recognition of same-sex marriages -- as unconstitutional.

The answer the courts give will depend on how the courts read the state's own constitution. As Joanna Grossman pointed out in a previous column, the lawsuit Mayor Newsom and the City of San Francisco have filed, seeking a declaration that current state statutes are void, asserts claims only under the California - not the federal -- constitution. (Newsom has said he believes there is a right to same-sex marriage under the U.S. Constitution too, but for tactical or other reasons has brought his claims only under the state constitution.)

Strategically, the decision to bring only state constitutional claims may prove wise -- for the California constitution is generally broader than is the federal Constitution in the recognition and protection of rights. Even when the words of the two documents are the same - say, in the guarantees of "due process" or "equal protection" of law - the California constitution may protect individuals more generously.

But are the state constitutional claims by same-sex marriage proponents, in the end, winners?

To even begin to answer that question, we need to look at both equal protection and privacy doctrines under the California constitution.

California Constitutional Equal Protection Doctrine

Consider, first, the promise of "equal protection of the laws."

To begin, California's marriage statutes, like those of other states that similarly define marriage as being only between a man and a woman, may be viewed as distinguishing between people based on gender. Put another way, California current marriage law may embody a so-called gender-based classification.

After all, the only reason a gay person can't marry his partner under California law is the gender of his partner. If the partner were of the opposite sex, the marriage would legal. Thus, a law prohibiting same-sex marriage may be a gender classification in the same sense that a law prohibiting (or requiring, for that matter) interracial marriage is considered a racial classification.

Under federal constitutional law, courts evaluate gender-based classifications under a somewhat stringent, but not entirely skeptical, form of analysis known as "intermediate scrutiny." But under California constitutional law, courts must apply "strict scrutiny" to gender classifications, just as they would to race-based classifications. And when subjected to strict scrutiny, laws are invalidated almost all the time.

For this reason, it will be important whether the California Supreme Court views discrimination against gays and lesbians as a form of gender-based discrimination. It has never spoken directly to this question -- and, in a 1979 case, it discussed but avoided the issue. (The court did, however, hold in that case that a particular instance of discrimination against gay employees was completely irrational, and thus unconstitutional, even under a less stringent standard of review.)

California Constitutional Privacy Principles

With respect to privacy principles, as well, the California constitution may be broader than its federal counterpart.

To begin with, unlike the federal Constitution, the California constitution has specific text protecting each individual's "inalienable right" to "pursuing and obtaining safety, happiness, and privacy." (The term "privacy" was specifically added in 1972.) Thus, all of the arguments against recognizing a right to privacy from the interstices of the U.S. Constitution -- and in favor of limiting that right on the ground that it is merely implied, rather than stated -- simply do not apply when it comes to the California constitution.

Moreover - and perhaps in part for this reason -- as the California courts have observed, "the scope and application of the state constitutional right of privacy is broader and more protective of privacy than the federal constitutional right of privacy as interpreted by the federal courts."

For instance, the California Supreme Court has held that woman's right to reproductive privacy obliges the state to fund abortions for an indigent woman if the State chooses to fund the medical expenses associated with childbirth. In contrast, under the federal Constitution the U.S. Supreme Court has made clear that no such funding is required.

Could this difference matter in the same sex-marriage debate? I think perhaps it could.

Some defend the current California marriage statutes by arguing that rather than imposing a burden, they withhold a public benefit - the label of marriage Yet this burden/benefit distinction -- though accepted by the federal courts in the abortion-funding-privacy context -- has been rejected by the California courts in the same context.

Put another way, California constitutional law in abortion funding cases makes clear that privacy, under the California constitution, sometimes requires access to a benefit, not just avoidance of a penalty. And in the marriage context, that may mean access to marriage, and its label.

For all these reasons, a California constitutional challenge such as Newsom's may well be more likely to succeed that a similar federal constitutional challenge (which Newsom declined to bring.) But there is an important twist.

The Downside of a State Constitutional Challenge: The Ban on Same-Sex Marriage Is In a Statutory Initiative

The twist is that one of the key California statutes under attack - that defines marriage as between a man and a woman - took the form of a state voter initiative in 2000. That year, so-called Proposition 22, which amended California's family law code to prohibit recognition of same-sex marriages, was approved by over 60% of voters.

If Proposition 22 had been a state constitutional amendment, Newsom would be sunk. (It would be almost impossible to argue that a state constitutional amendment is substantively unconstitutional under the state constitution.) Proposition 22, of course, wasn't a constitutional amendment -- it was a state statutory initiative, as I've noted. But, in California, it turns out that the process for a statutory initiative and an initiative constitutional amendment are very, very similar.

And that very similarity may tempt California courts to treat Proposition 22 almost as if it were a state constitutional amendment -- and therefore uphold it.

Comparing California's Statutory Initiative, and Its State Constitutional Amendments

Here are the similarities between statutory initiatives like Proposition 22, and initiative constitutional amendments: Both need only a simple majority of votes to be enacted. Neither can be undone by a subsequent act of the legislature -- even by a supermajority of the legislature. And their rates of passage, when proposed, are quite similar.

Is there a difference? Yes. The number of signatures needed to qualify the measure for the ballot in the first place is higher for a constitutional amendment (8% of the number of voters in the last gubernatorial election) than for a statutory initiative (which takes only 5% of the same number).

Given these similarities, one prominent and thoughtful scholar of direct democracy, the late Julian Eule of UCLA, wrote about a decade ago:

Using the state constitution as a judicial shield against the [people's] legislative effort places a lot of weight on the form initially selected by the plebiscite's promoters. Considering the scant attention voters appear to pay to this form, and state constitutions' lack of additional filters for the amendatory process - save additional signatures needed to secure placement on the ballot - a court's invalidation of voter legislation under the state constitution is a questionable preference for the voice of past electoral majorities [who approved the state constitution's provisions] over current ones.

In essence, Eule's logic here suggests that since the voters in 2000 probably did not care whether Proposition 22 took the form of a statute rather than a constitutional amendment, perhaps courts shouldn't care about the distinction either. After all, voters would likely have voted for Proposition 22 either way, as an expression of what they wanted fundamental California law to be.

Reasons to Treat the Same-Sex Marriage Statutory Initiative Differently

There are, however, a few reasons why Eule's observations are less than persuasive, especially in the context of same-sex marriage.

First, much has happened since 2000, when the initiative was passed -- meaning that the initiative may not still express, in Eule's words, the wishes of a "current" legislative majority.

Since 2000, the Supreme Court handed down Lawrence v. Texas, which may have educated us all a bit about laws that discriminate against same-sex couples. The Massachusetts Supreme Court, too, issued carefully worked-out opinions laying out the various arguments under that state's basic charter. And, of course, San Francisco (and other localities) have actually issued same sex marriage licenses, so that we can see a bit of how such marriages (subject to legal challenge, but honored by their participants) may work in practice.

Public attitude in this area is evolving very quickly. Who would have guessed in 2000 that President Bush would be open to civil unions in 2004 (even as he is backing a federal amendment banning same-sex marriage)? The moderate position on gay marriage has drastically shifted -- people who might have seen civil unions as extreme just a few years back, may now see them as a middle-of-the-road compromise solution.

For all these reasons, a truly "current" majority of Californians - informed by recent developments - might well feel differently than they apparently did in 2000. It is fortunate, then, that they did not enshrine their views in a Constitution, but rather expressed them in an initiative statute.

Second, I think that the form - or label - of Proposition 22 should matter, to some extent. However similar Proposition 22 may have been to a state constitutional amendment, the fact is that it wasn't one. It is at least possible that voters might have seen a state constitutional amendment as presenting a graver and more permanent choice.

The people of California do enjoy, to be sure, a right to "alter and abolish" their state constitution in any way that does not violate the federal Constitution. But the popular sovereignty right of Californians presupposes a deliberative, considered judgment. Even when Californians are confronting a proposed state constitutional amendment, the process for decisionmaking is, unfortunately, less than completely deliberate and considered. And treating statutory initiatives as if they were state constitutional amendments would only move farther in the wrong direction.


Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author of the Cohen and Varat constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher. Professor Amar's other columns on California and the same sex marriage debate may be found in the archive of his columns on this site.

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