Proposition 8, Limiting Marriage to Opposite-Sex Couples, Constitutes Valid Amendment to California Constitution, but Same-Sex Marriages Performed Prior to Its Adoption Are Valid.

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In Strauss v. Horton (2009) 46 C.4th 364, 93 C.R.3d 591, 207 P.3d 48, the court determined the constitutional validity and legal effect of Proposition 8, an initiative measure adopted by the voters on November 4, 2008. The initiative adopted Cal. Const., Art. I, §7.5, which provides that “[o]nly marriage between a man and a woman is valid or recognized in California.” The court addressed two questions: whether Proposition 8, under the provisions of the California Constitution government amendment, constitutes a permissible change to the California Constitution and, if it does, what effect, if any, the passage of Proposition 8 has on the estimated 18,000 same-sex marriages that were performed before it was adopted. Held, Proposition 8 constitutes a permissible amendment, as opposed to an impermissible revision, of the California Constitution, but it does not apply retroactively to invalidate the same-sex marriages performed before its adoption.

(a) Procedures to amend or revise California Constitution. An amendment to the California Constitution may be proposed either (1) by two-thirds of the membership of each house of the Legislature (Cal. Const., Art. XVIII, §1), or (2) by an initiative petition signed by the voters numbering at least 8% of the total votes cast for all candidates for Governor in the last gubernatorial election (Cal. Const., Art. II, §8(b); Art. XVIII, §3). Once an amendment is proposed by either means, it becomes part of the California Constitution if it receives a simple majority of the votes cast on the measure at a statewide election (Cal. Const., Art. XVIII, §4). (46 C.4th 386.) However, a constitutional revision, which contemplates a more fundamental alteration of the constitutional structure, may not be adopted through the initiative process. (46 C.4th 386, 414.)

(b) Amendment versus revision. Case law explains that in resolving the amendment/revision question, courts must assess (1) the meaning and scope of the change at issue, and (2) the effect, both quantitative and qualitative, “that the constitutional change will have on the basic governmental plan or framework embodied in the preexisting provisions of the California Constitution.” (46 C.4th 387; for discussion of pertinent case law, see 46 C.4th 426 et seq.) The distinction between an amendment and a revision does not turn on the relative importance of the measure, but rather on its scope. To be a revision, a measure must embody a constitutional change so far reaching that the framers of the Constitution would have proposed that the type of change could be adopted only by a constitutional convention. (46 C.4th 446; for discussion of other significant changes to the California Constitution made by amendment, see 46 C.4th 446 et seq.) Proposition 8 does not entirely repeal or abrogate a same-sex couple’s state constitutional right to privacy and due process in choosing one’s life partner and in entering into an officially recognized, committed, family relationship, as discussed by In re Marriage Cases (2008) 43 C.4th 757, 76 C.R.3d 683, 183 P.3d 384, 7 Summary (10th), Constitutional Law, Supp., §226A (Marriage Cases). Nor does the proposition 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.” (46 C.4th 388.) “As a qualitative matter, the act of limiting access to the designation of marriage to opposite-sex couples does not have a substantial or, indeed, even a minimal effect on the governmental plan or framework of California that existed prior to the amendment.” Nor does it “transform or undermine the judicial function.” (46 C.4th 388.)

(c) Long-standing constitutional rights may be amended. There is no authority for the claim that a lawfully adopted constitutional amendment “cannot diminish in any respect the content of a state constitutional right as that right has been interpreted in a judicial decision.” (46 C.4th 389.) And although the right to equal protection of the laws represents a long-standing and fundamental principle, which has not generally been repealed or eliminated by Proposition 8, many other long-standing and fundamental principles have been amended in the past. “Neither the language of the relevant constitutional provisions, nor our past cases, support the proposition that any of these rights is totally exempt from modification by a constitutional amendment adopted by a majority of the voters through the initiative process.” (46 C.4th 389.)

(d) No violation of separation of powers doctrine. Proposition 8 does not violate the separation of powers doctrine embodied in the California Constitution by readjudicating the issues that were litigated and resolved in the Marriage Cases. The initiative “does not declare the state of the law as it existed under the California Constitution at the time of the Marriage Cases, but rather establishes a new substantive state constitutional rule that took effect upon the voters’ approval of Proposition 8.” (46 C.4th 390.) The people have the right to amend the California Constitution through the initiative process, and in exercising that authority here, the people did not usurp a power allocated exclusively to the judiciary or some other branch of government. (46 C.4th 390, 465.)

(e) No compelling state interest is required. The Attorney General’s argument, that the inalienable rights embodied in Cal. Const., Art. I, §1, are not subject to abrogation by constitutional amendment without a compelling state interest, is flawed. (46 C.4th 390, 466.) Proposition 8 does not abrogate the right to privacy or due process and equal protection guarantees. Instead, it carves out a narrow exception applicable only to the designation of the term “marriage,” but not to any other of the substantive legal rights and attributes traditionally associated with marriage. Further, no authority supports the Attorney General’s claim that a constitutional amendment is invalid simply because it affects a prior judicial interpretation of a right the Constitution denominates as “inalienable.” Although some state constitutions include explicit limits on the subjects or portions that may be amended, there are no similar restraints in the California Constitution. (46 C.4th 391.)

(f) No retroactive effect. Under general rules of interpretation, Proposition 8 cannot properly be applied retroactively to the marriages of same-sex couples performed prior to its effective date. Hence, those marriages are valid and must continue to be recognized in California. (46 C.4th 392, 470.)

One justice filed a concurring opinion. (46 C.4th 475.) Another justice filed an opinion concurring in the conclusion that Proposition 8 does not operate retroactively, but dissenting regarding whether 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 can be accomplished by an amendment through the initiative process. (46 C.4th 477.)

Witkin References

On amendment and revision of California Constitution, see 7 Summary (10th), Constitutional Law, §§70, 71.

On right, prior to passage of Proposition 8, of same-sex couples to marry, as analyzed in In re Marriage Cases, see 7 Summary (10th), Constitutional Law, Supp., §226A.

On construction against retrospective effect of initiative measures, see 7 Summary (10th), Constitutional Law, §634.