Legal Analysis of Strauss v. Horton: California’s Proposition 8 Challenge
Though the California Supreme Court in In re Marriage Cases found a fundamental right to marriage equality, it today upheld Proposition 8, the initiative restricting marriage to opposite-sex couples. The 18,000 gay and lesbian couples who wed before Proposition 8, however, are permitted to remain married.
The court rejected the argument advanced by marriage equality advocates that Proposition 8 was a Constitutional revision and not an amendment. The core of the argument was that a fundamental right cannot be taken away by a simple majority vote. The Human Rights Campaign explains the position using this analogy:
It helps to think about this in terms of renovating your home. If you want to paint your house, you just go to the store and select a color, then paint. But if you want to add on to, structurally change, or even demolish your house, you need to get a permit, and typically the work gets done by a licensed professional. Why? Because when you’re dealing with the bearing walls and the structure, you need to take care with what you’re doing, or the whole thing can tumble down. And people can get hurt.
It’s the same with a constitution — through the initiative process, you can embellish and clarify, but you can't move a bearing wall, not without a deliberative process.
The court limited its analysis only to whether Proposition 8 was a valid exercise of the initiative process. In doing so, it reached three main conclusions in the case:
- Only changes to the government’s structure constitute a revision;
- Proposition 8 did not abridge a group’s fundamental rights, but merely limited the word "marriage"; and
- Constitutional amendments do not have a retroactive effect, and therefore the previous marriages must be honored.
I will explore each of these conclusions individually. Quotations have all come from the Strauss v. Horton opinion unless otherwise cited. The full text of the opinion is available on the court's website [pdf].
Amendment versus Revision
The majority opinion offered very little justification for why Proposition 8 was a constitutional revision and not an amendment. On this point, the court merely says the following (internal citations omitted):
[T]he numerous past decisions of this court that have addressed this issue all have indicated that the type of measure that may constitute a revision of the California Constitution is one that makes "far reaching changes in the nature of our basic governmental plan", or, stated in slightly different terms, that "substantially alter[s] the basic governmental framework set forth in our Constitution."
The most troublesome case if adopting this reasoning is Raven v. Deukmeijan, which found that California Proposition 115 — a measure limiting the rights rights of certain criminal defendants — was an unconstitutional revision because it had the "far-reaching changes" the court refers to. But the court overlooks that Proposition 115's unconstitutionality was rooted in its robbing of the power to independently interpret constitutional provisions. The court’s interpretation of equal protection was as infringed by Proposition 115 as it is now by Proposition 8. The Strauss majority opinion is inadequate in specifying how Raven does not control the outcome here.
Rather than relying on — and, by extension, applying or distinguishing — precedential authority, the court engaged in formalistic chatter about the differences between a 'revision' and an 'amendment'. It failed to explain substantively why stripping a historically oppressed minority of their rights to due process, equal protection, and privacy did not amount to a qualitative change to the constitution, and in doing so, functionally ignored one of the plaintiffs' primary arguments. In place of justification, the court instead praises the state’s initiative system, and merely offers that "[i]f the process for amending the Constitution is to be restricted [. . .] this is an effort that the people themselves may undertake."
On this point, it appears as if the court decided the case not on legal grounds, but on political ones; it preferred not to be the body to overturn a popular vote even though the constitution and the court’s own precedent seems to suggest that it must.
Fundamental rights
Strauss v. Horton additionally seems inconsistent with In re Marriage Cases. Though the justices expressed during oral arguments that the playing field had shifted as a result of Proposition 8, such a finding does not support what the court ultimately concluded. Though the opinion offers that "Proposition 8 [does not] fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in [In re Marriage Cases]," the court seems to have forgotten what that case actually found. In it, Chief Justice George outlined the various ways in which domestic partnerships are unequal to marriage. Now, however, the court seems to conclude that the only difference is in the designations.
Proposition 8 did not alter the rights, benefits, or privileges of either marriage or domestic partnerships, so it does not hold that the playing field was shifted by the measure. Strauss's conclusion is wholly inconsistent with the tenets of Marriage Cases and its finding of substantive differences between marriage and domestic partnerships. The court has schizophrenically changed its position while pretending that Marriage Cases said something different than it actually did.
Justice Moreno’s dissent touches even more on this critical point:
Proposition 8 represents an unprecedented instance of a majority of voters altering the meaning of the equal protection clause by modifying the California Constitution to require deprivation of a fundamental right on the basis of a suspect classification. The majority’s holding is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution.
Retroactive Effect
While the court ultimately concluded that Proposition 8 would not retroactively cancel the marriages of the 18,000 couples legally wed before the measure’s enactment, I am slightly troubled by the reasoning in this area as well.
The text of the amendment plainly states that "[o]nly marriage between a man and a woman is valid or recognized in California." It suggests an intent to apply retroactively. However, by ruling that Proposition 8 is not retroactive, the court implicitly changed the wording and meaning of the amendment. Because such a retroactive application would violate the constitution, the court effected Proposition 8's constitutionality by altering its text. And while the court is empowered to do so, I do not believe its exercise of discretion was appropriate in this case.
Proposition 8 demands that same-sex marriages not be recognized in California. Contrary to the language, however, the court expressly requires that those 18,000 same-sex marriages be recognized. This leaves a host of unanswered questions, most notably the status of individuals who were married in other states before Proposition 8 and therefore denied marriage licenses in California. Will their marriages still be recognized? If so, the court deviates even further from the text of Proposition 8. If not, the court violates its own reasoning for recognizing those 18,000 marriages to begin with.
A more just solution would have been for the court to find the entirety of Proposition 8 unconstitutional, and provide leave for voters to attempt to amend the constitution a second time using text that does not apply its prohibition retroactively. By doing so, the new proposition would not run afoul of the constitution — at least in the court’s mind — and would not create the host of problems unresolved in this opinion.
I believe it goes without saying that I am deeply disappointed by the California Supreme Court’s ruling in Strauss v. Horton. I believe that its jurisprudence was sloppy, and that it failed to adequately address the plaintiff's most persuasive arguments or rely on any legal precedent. I cannot see the case as anything but a black mark on a state that has now fallen behind five others in equality for its citizens. I hope to see the day very soon when voters have the courage to do what the court did not.
On a personal note, your author planned to marry his partner in California in 2010. I can only hope that the law catches up by then.
Have any insight on this topic? Want to ask a question or make a suggestion? Click here to leave a comment.
Related Articles
- Bush v. Gore Lawyers Team Up to Challenge Proposition 8 Federally
- Why Losing the Proposition 8 Challenge in California Might Be a Good Thing
- The marriages of 18,000 couples depend on tomorrow’s ruling
- California Proposition 8 Anniversary: Revisiting the (Bad) Arguments
- This Week in Gay News Roundup: 4/26 - 4/30
Discussion
Have a question or comment about this article? Leave me a message.
I agree with your analysis of the contortions of the Strauss opinion. While the public thinks "marriage" is now restricted and the Marriage Cases is overruled, I'm reading the opinion as a "substantive" win for marriage equality. I think the new rule enunciated is: Equal Protection still applies in all substantive rights but not nomenclature. New out-of-state marriages will be converted within CA to domestic partnerships with all the substantive rights of marriage [each right to be litigated ad libitem].
Do you think I'm deluding myself with a biased reading?
I think Strauss just puts off reconciling DOMA.
- Maro Luxe, 06/06/09 at 3:42 pm