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So angry over Prop 8 you want to sue?

November 18, 2008

Don’t worry, the ACLU has that base covered!

While using the state constitution to take rights away certainly seems like it should be illegal to me, I’m definitely glad the folks at the ACLU are taking California’s Proposition 8 to the courts. Not being a lawyer myself, I asked one I know to explain what it is the ACLU is trying to do. I also asked for his take on their chances. Below is his response. I admit this may seem like it’s just an easy entry, but keep in mind that I’m not a lawyer and don’t possess anywhere near his level of legal expertise!

I read the brief filed by the ACLU and others. The brief asks the Supreme Court of California to mandate that the government desist from any action enforcing Prop 8.

Looking at the legal argument against Prop 8, it certainly seems reasonable, although I’d have to know how aggressive/creative the petitioners are being in their interpretation of case law. (Verifying that would take me weeks.)

Key here is the distinction between an “amendment” and a “revision” to the California Constitution. An amendment can be done via majority popular vote, but a revision must be done via 2/3 vote in the state legislature. (See S 1 and 2 of Article XVIII of the Calif. State constitution below).

The brief points to Calif. state case law in differentiating between an amendment and a revision. An amendment, which again may be passed via bare majority in the initiative process, is one that (quoting brief) “seeks to elaborate or improve upon existing constitutional principles.” The term “amendment” is also articulated as (quoting case law) “impl[ying] such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which [the instrument] was framed.”

Meanwhile, a revision is something that (quoting case law) seeks to change “underlying principles” upon which the Constitution is premised, or that would make “far reaching changes in the nature of our basic governmental plan” (whatever the heck that means). The formula is a bit loosey-goosey: a change does not have to hit both of the above prongs to be a revision–case law says a “substantial change in either respect could amount to a revision.” Of course, it helps if you can hit both prongs.

My very, very quick analysis (more of a reaction) is: As to “underlying principles”, there does seem to be a violation because Calif. case law has established that under the Calif. constitution, gays and lesbians are a protected class, and the right to marry is a fundamental right. Although defining an “underlying principle” is an exceedingly subtle enterprise, the brief argues persuasively that a Constitution’s chief principle is to protect minorities against majorities. I agree this must be true. As opposed to a statute, which can be changed at the majority’s will, a Constitution is a pre-commitment strategy in which those in power, in moments of heightened moral and intellectual clarity (such moments are referred to by legal scholars as “constitutional moments”) bind their own hands, like Odysseus asking to be tied to the mast.

At that time, they articulate and enshrine the broad rules and general principles that are so important to a society’s welfare that they must always be followed, even when they are unpopular or highly costly in the short term. Such rules and principles necessarily try to maintain a balance in asymmetrical power relations that could otherwise turn abusive in the absence of constitutional protections–police to suspects, elected officials to the people, military forces to civilians, and majorities to minorities.

Indeed, as the brief notes throughout, allowing a constitution’s regulation of minority-majority relations to be changed via popular vote is just bad mechanics. It undermines the whole purpose of a constitution as I’ve just described it. It’s also a slippery slope–if Prop 8 is okay, there’s nothing that stops increasingly important chunks of the Calif. Constitution from being carved out by popular will at any given time. Of course, one can argue that popular will could just as easily restore what’s been lost. But that’s experientially incorrect, even if technically true. Once majorities are granted increased power over minorities, there’s little incentive to give that power back. More to the point, the new power granted to the majority can be used to marginalize the minority groups from the political process, such that what has been lost not only cannot be recovered, but will be magnified over time. That’s the whole reason the term “discrete and insular minority,” and the protections given them, exist in the first place.

For this reason, my first stab is that changing a majority’s relationship with a discrete and insular minority (as gays, again, are defined in Calif.) is a textbook example to a change to a “fundamental underlying principal” of the Constitution. Is it enough, on its own? Is it so “substantial” that it’s a revision right there? I think so, but it’s not something that can be easily quantified.

One problem is that Calif. courts found it acceptable for the initiative process to be used to (re) define the scope of the right to be free from cruel and unusual punishment under the Calif. Constitution–so how is this different? The brief argues, first, that that amendment changed the right as it applied to all Californians alike. That’s kind of true, although really it only applies to Californians being punished by the government, which is quite certainly a minority deserving of constitutional protection. The brief’s better rebuttal is that Prop 8 is different because it deals with gays and lesbians, not criminals. Criminals are not a protected class, while gays are a protected class… a discrete and insular minority possessing an immutable trait. Such groups deserve higher protections than groups, such as criminals, which are certainly minority groups but which are neither discrete, insular, nor immutable.)

Again, the other prong for finding that a change is a revision (as opposed to a mere amendment) is that it make “far reaching changes in the nature of our basic governmental plan.” Here, the brief makes a half-hearted attempt to show how Prop 8 is like other laws that were struck down as being a big change to courts’ authority, and thus, by implication, a governmental “plan” (which is never defined). But first of all, I’m not sure how Prop 8 changes courts’ authority, except insofar as it requires courts to recognize the strict language of the change to the constitutional text, which is also true of any change. The brief’s logic seems at first glance messy in that respect, because the end result would be that no change to the constitution is okay because it in effect impinges on courts’ authority. Also, even in the section dedicated to this second prong, the brief uses a lot of space to again discuss “underlying principles.” So I think no one really knows what this “basic governmental plan” thing really means. That could be dangerous, as a court determined not to find in petitioner’s favor could flesh this term out after the fact, in the ruling on this very case, and in doing so find against the petitioner.

Finally, a quick comment on the federal constitution. I know you asked whether a claim could be brought that Prop 8 violates the U.S. Constitution, and I said I thought probably not. Indeed, the ACLU brief, at least, explicitly does not go down that road. It notes that “it is no answer…[to note] that the federal Constitution may provide some level of protection against majoritarian abuse of minority groups. Gay and lesbian Californians…are entitled to the unique protections of the California Constitution.” The reason the brief says this is because other states have passed constitutional amendments that have not been ruled to run afoul of the US Constitution. So, their point is that the California Constitution is more protective of gays and lesbians than other state constitutions.

The relevant section from the Calif. constitution is below.


SEC. 1. The Legislature by rollcall vote entered in the journal,
two-thirds of the membership of each house concurring, may propose an
amendment or revision of the Constitution and in the same manner may
amend or withdraw its proposal. Each amendment shall be so prepared
and submitted that it can be voted on separately.


SEC. 2. The Legislature by rollcall vote entered in the journal,
two-thirds of the membership of each house concurring, may submit at
a general election the question whether to call a convention to
revise the Constitution. If the majority vote yes on that question,
within 6 months the Legislature shall provide for the convention.
Delegates to a constitutional convention shall be voters elected from
districts as nearly equal in population as may be practicable.

Now let’s give a round of applause to our guest counsel! And never fear – I’m sure he’ll be back at some point.

One Comment leave one →
  1. November 28, 2008 3:46 am

    Hey there, my first post at your blog, I found it via the “Growing blogs section.” Although I think we don’t have much in common. (I’m a straight European male blogging about programming :P ) I would like to add a comment here to show support.

    It’s really idiotic how California (‘The Gayest state in the U.S.’) is trying to forbid gay-marriage. Who on earth is harmed when 2 people of the same-sex marry? I can imagine that you can’t force a very religious person to marry you in front of the church. But government officials (who are legally abliged to not-discriminate) should always be able to marry same-sex couples.

    I don’t understand why anyone want’s to forbid it. Are christians and muslims going to hell when some same-sex couples marry? I thought not. Do they care so much for same-sex couples that they wan’t to keep them away from hell? (note: I don’t beleave in hell/that gay people are bad and thus go to hell). I thought not!

    So why do they actually care? Why impede their faith on everyone around them even if they don’t like you. (Acording to the bible you should try to convert people you love since that makes their lives better, and ofcourse you wan’t your friends to have a better live so I can understand all the faith pushing there.) But why impede it on total strangers, on people you don’t like (generalisation about people in the big faiths not like gay’s).

    I don’t understand it!

    Oh well I’m from the Netherlands, 99% of the population doesn’t consider being gay weird whatsoever, only a few idiots/extremist but they are hard to weed out. Hell I even went to one of our excellent gay clubs to have a drink with a friend.

    I hope this prop8 is going to be sueud over and over again until no-one dares to ever mention it.

    Good luck there in the U.S.!

    (sorry for my English, I’m not a native English-speaking person!)

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