Tuesday, May 26, 2009

The Decision, 2

(UPdate) The commentators are starting to speak up. It may have a few peeks of silver. For analysis, go to LawDork, or to Word in Edgewise, or to this Dailykos diary which argues that all Prop8 supporters got was the name, not the substance.

From the opinion:
The principal issue before us concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process so as to incorporate such a limitation as an explicit section of the state Constitution.
There were three questions argued before the court.
(1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?
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.

(2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution?
Because the California Constitution explicitly recognizes the right of the people to amend their state Constitution through the initiative process, the people, in exercising that authority, have not in any way impermissibly usurped a power allocated by the Constitution exclusively to the judiciary or some other entity or branch of government.

(3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?
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.

The Day of Decision: Join the rallies in your city. See the list here. Show your pride, show your love. Keep it peaceful! We have to win hearts and minds, not simply show our feelings. The eyes of the world are upon us.


IT said...

They also say

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 — that is, the constitutional right of same-sex couples to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage” (Marriage Cases, supra, 43 Cal.4th at p. 829). Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion.

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.

By clarifying this essential point, we by no means diminish or minimize the significance that the official designation of “marriage” holds for both the proponents and opponents of Proposition 8; indeed, the importance of the marriage designation was a vital factor in the majority opinion’s ultimate holding in the Marriage Cases, supra, 43 Cal.4th 757, 845-846, 855.

Nonetheless, it is crucial that we accurately identify the actual effect of Proposition 8 on same-sex couples’ state constitutional rights, as those rights existed prior to adoption of the proposition, in order to be able to assess properly the constitutional challenges to the proposition advanced in the present proceeding.

We emphasize only that among the various constitutional protections recognized in the Marriage Cases as available to same-sex couples, it is only the designation of marriage — albeit significant — that has been removed by this initiative measure.

The tone of the decision is regretful, and stresses the very narrow window of Constitutional law under which this was argued (and was admittedly a long shot). It was NOT argued under equal protection issues.

Ironically, if the more draconian of the two amendment Props had gotten on the ballot, it might have been thrown out. The other one also banned Domestic Partnerships.

James said...

The "limited exception" would never been allowed to stand if it had been against any minority except the GL community. This is really an egregious statement by the court.

This is not the end of the story, though. We shall overcome. It's on to 2010. Only this time, it will be different. Those who sat on the fence or just didn't think it mattered will be out on the side of equality.

With every passing day more Californians recognize the injustice of the Prop8 amendment. It will be overturned.

Brother David said...
This comment has been removed by the author.
Brother David said...

I very matter-of-factly brought this to the attention of the Stand Firm crowd in their post last night, that prehaps they should actually read the decision because it did not say what they were proclaiming it to say and that the CA Supremes had rendered this decision as narrowly as possible regarding the designation, a word. Some of them were very covetous of that word. Accused me of sour grapes over the word, even though I pointed out that the ruling does not apply to us in Mexico.

Funny lot, them.