Douglas W. Kmiec

The California Supreme Court Hearing on the Validity of Proposition 8, the Initiative Banning Gay Marriage: How the Case Implicates the Very Purpose of a Constitution, the Rule of Law, and Human Liberty Itself: Part One in a Two-Part Series of Columns

By DOUGLAS W. KMIEC
Monday, March 9, 2009

Recently, the California Supreme Court heard oral argument on the validity of Proposition 8, an initiative California voters passed at the polls last November. As readers likely know, last year the California Supreme Court held that all couples in California, regardless of sexual orientation, have an equal right to have an intimate relationship officially acknowledged by the state. In addition, the Court found that if the state persisted in drawing distinctions on the basis of sexual orientation, that is a "suspect classification," which would be near-impossible to justify except with a showing of a most compelling governmental interest.

By its terms, Proposition 8 provides "that only marriage between a man and a woman is valid or recognized in California." In this column, I explore the implications of the case for the deeper meaning of constitutionalism and the rule of law. Tomorrow, in Part II, I will elaborate on a proposed resolution to the Proposition 8 litigation that, unlike that advocated by either side, gives vindication to the fundamental principles of equality and religious liberty that are inescapably intertwined with the same-sex marriage question.

The Core Question: What Is A Constitution?

The immediate validity or invalidity of Proposition 8 turns on whether the initiative qualifies as a mere "amendment" (requiring majority approval from the electorate) or instead implicates such a profound change to the state's constitutional understanding that the proposition needs approval by two-thirds of the Assembly as well as passage by the people as a "revision."This instrumental question of definition hides some far more foundational queries, however, namely: Is a Constitution merely a device to disguise the brute force that lies behind legal command, or is it an attachment to the timeless principle of human liberty – be it the liberty to choose one's own most intimate partner, or the liberty to voluntarily choose a faith tradition that constrains the scope of that liberty based upon scripture or natural law? Is a Constitution merely a rubber stamp of whatever it is the people decide -- however wrongful; however discriminatory; however arbitrary the decision of the people may be? Or is a Constitution a written promise we have made to each other to apply the laws we devise prospectively and evenhandedly – embracing the very precept of "equal justice under law" as inscribed on the arch of the highest court in the land? Does the Constitution secure fundamental rights and the basic structure of government under a rule of law where even the people themselves are under that rule, powerless to change it?

At oral argument, some members of the court -- including, most notably and surprisingly, some who were in the majority in the Court's original decision recognizing equality of rights between straight and gay, In Re Marriage Cases -- seemed attracted to the notion that the people have an inalienable right to do whatever they want. Dean Starr made this argument for the opponents of Proposition 8, but with all due respect that is not an affirmation of inalienable right, but a prescription for tyranny.

California's Own Precedent Casts Doubt on the Claim that There Is No Limit to What Initiatives California's People Can Effectively Pass to Amend Its Constitution

The claim that there is no check on what the people of California can do not only fails on theoretical terms, but arguably also disregards the California Supreme Court's own precedent, which recognizes that "We the people" have entrusted the court with the responsibility of drawing the line between what constitutes a mere "amendment" and what constitutes a more substantial "revision." The Court cannot escape this responsibility; we gave it to the Justices. Whether they sustain or disavow Proposition 8, they – not the people – will have decided whether Proposition 8 is good law.

The court had previously decided, in Raven v. Deukmejian, that tying the meaning of the state constitution to solely federal standards was the equivalent of a change in the structure of government. The proposed measure in Raven provided that certain criminal law rights "shall be construed by the courts of [California] in a manner consistent with the Constitution of the United States" and that the state constitution "shall not be construed to afford greater rights" than those afforded by the federal constitution. The court determined that the proposal "would have fundamentally changed and subordinated the constitutional role assumed by the judiciary in the governmental process" and therefore, requiredthe greater procedural approval of a revision. By this logic, why isn't Proposition 8 also a revision? Isn't the judiciary subordinated in the present case as well?

The court could distinguish Raven by indicating that, here, the subordination is to the people, the ultimate source of governing authority, but that overlooks that in Raven, the court ordered the initiative that had secured the necessary signatures of the people off the ballot, effectively denying "the people" any opportunity even to express its view of the matter. Of course, Raven was a case where multiple trial rights for criminal defendants were proposed to be limited, whereas, here, only one right is implicated, but the notion that one needs some multiple number of fundamental rights to receive protection seems to drain the word "fundamental" of any meaning. As the court acknowledged during the Proposition 8 hearing, it has never before confronted the issue of whether the deprivation of a fundamental right -- especially when the deprivation affects only the members of a suspect class (that is, a discrete, insular group that has long suffered discrimination) -- would also require the greater procedural requirements necessary for a revision.

At the hearing, the state Attorney General's representative struggled when asked to define "fundamental right," and for this reason, some on the court may be tempted to limit the greater procedural demands of a revision to substantial structural changes. What counts as a "substantial structural change," too, was not defined at the hearing, though presumably, the thought in everyone's mind was that it would require some blatant interference by the legislature in a particular judicial determination. Oh wait -- that's this case, only the people are the legislative source of power. In any event, historically, there would seem little reason to differentiate structure cases from rights cases for they are interrelated -- a point that was given special emphasis by Alexander Hamilton during the formation of the federal Constitution. Hamilton didn't even think an express bill of rights was necessary, since the Constitution itself, by its division of power, is a bill of rights. Structural features (such as the independence of the federal courts) protect rights, and rights ensure that structural features of government work well. For instance, our democratic structure could hardly function if the government could legally restrict speech and assembly.

So what's going on here? How is it that a venerable state constitution intended "to secure these rights" becomes an instrument of insecurity? As a Roman Catholic whose faith stands against the recognition of same-sex marriage, it would be convenient for me to pass over this troubling question. Yet, if the honest answer turns on the identity of the right holder or deference even to my own faith tradition, the rule of law has been subverted. When we look at forms of discrimination that have been prohibited by law for a longer time, and suspect classes that have been long-recognized, the point is given even greater clarity. The California Supreme Court decided in the 1960s that gender was a suspect class, in the context of ruling that certain occupations could not be limited to males. Surely the court would not think it proper for an instant, in 2009, for the people of California to reassert such gender discrimination as perfectly legal, effectively reversing the Court's own decision.As the advocates against Proposition 8 speculated, it may well be that the only reason why it seems moreacceptable, to some, to take away the rights of same-sex individuals, is that those who have drafted the law have not been the subject of similar discrimination and know that the proposition being written into law will notapply to them.

What Will the Court Likely Decide in the Proposition 8 Case?

So how will the California Supreme Court rule?

Based on the Justices' questions -- which showed erudition and preparation, but nevertheless may not perfectly reflect the likely outcome -- there would not seem to be a majority for overturning Proposition 8. But happily, there would seem no majority for the most discriminatory interpretation of Proposition 8, either. For example, the claim that Proposition 8 is retroactive -- affecting even marriages entered into after the court's decision in In Re Marriage Cases but before the initiative vote -- seemed to have zero traction. The proponents of Proposition 8 made several fancy arguments about equitable doctrines like the "putative spouse rule" that might mitigate the impact of retroactivity, but the Justices seemed quite dubious. Retroactive invalidity would require holding that the same-sex couples who entered into marriages that were legal at the time could have those marriages rendered null and void, despite their reliance upon them, and despite due process rights.

The betting of most observers is that the court will sustain the validity of a strict textual interpretation of Proposition 8. That would seem likely, but what that exactly would mean in terms of remedy requires some working out, and tomorrow's Part II will consider remedial options, including an elaboration of a proposal made by my colleague Shelley Ross Saxer and myself that several members of the court seemed quite interested in evaluating. That proposal reaffirms the equality represented by the prior holding in In Re Marriage Cases, and honors the will of the people in Proposition 8 by in essence refraining from having the state use marriage terminology for any couple. In essence, the state would issue licenses of espousal or civil union and would return the concept of marriage to religious communities where the concept of marriage originated.

As will be described tomorrow, this separation of state from church would remedially give a good answer to questions of what is the purpose of the Constitution and its relation to liberty. For "rightful liberty" is, as Jefferson described it, "unobstructed action according to our will within limits drawn around us by the equal rights of others."


Douglas Kmiec, a Findlaw guest columnist, is Chair and Professor of Constitutional Law, Pepperdine University. The former head of the Office of Legal Counsel for President Reagan, Professor Kmiec was a campaign surrogate for Barack Obama and authored Can a Catholic Support Him? Asking the Big Question about Barack Obama (Overlook Press/Penguin 2008).

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