Equal Protection - Same-Sex Marriage - California Supreme Court Classifies Proposition 8 as "Amendment" Rather Than "Revision"

Harvard Law Review, April 2010 | Go to article overview
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Equal Protection - Same-Sex Marriage - California Supreme Court Classifies Proposition 8 as "Amendment" Rather Than "Revision"


EQUAL PROTECTION--SAME-SEX MARRIAGE--CALIFORNIA SUPREME COURT CLASSIFIES PROPOSITION 8 AS "AMENDMENT" RATHER THAN "REVISION."--Strauss v. Horton, 207 P.3d 48 (Cal. 2009).

In May 2008, a judicial opinion made California the second American state to recognize marriage equality for same-sex couples. (1) Less than six months later, California voters passed Proposition 8, changing the state constitution to strip same-sex couples of this right. Recently, in Strauss v. Horton, (2) the California Supreme Court upheld the validity of Proposition 8, holding that the initiative was properly classified under California law as a constitutional "amendment" rather than a constitutional "revision." The supreme court concluded that restricting the term "marriage" to opposite-sex couples did not represent the kind of "fundamental change" necessary to represent a revision, which must be initiated by a legislative supermajority before reaching the voters. (3) The court's standard--that only changes to governmental structure qualify as revisions--was consistent with a narrow reading of California precedent. However, the court missed an opportunity to resolve a problem that had not been addressed by that precedent, and further failed to take into account the judicial role in protecting minority rights. The court should have held that fundamental changes to individual rights for minority groups are per se revisions. In doing so, the court would have required a deliberative process for such constitutional alterations, better serving a conception of courts as the protectors of minority rights. (4) The likely harms the Strauss holding will cause for minorities--especially gay individuals--demonstrate the superiority of such a conception of judicial review and the amendment/revision distinction.

In In re Marriage Cases, (5) a 4-3 decision, the California Supreme Court held that state laws limiting the designation of the term "marriage" to opposite-sex couples violated both the fundamental right to marry and the state constitution's equal protection clause. (6) On the latter point, the court reasoned that "retaining the designation of marriage exclusively for opposite-sex couples ... may well have the effect of perpetuating a more general premise ... that gay individuals and same-sex couples are in some respects 'second-class citizens.'" (7)

A few weeks after the court's decision, the Secretary of State certified Proposition 8 to appear on the general election ballot. (8) Proposition 8 sought to add a provision to the state constitution reading: "Only marriage between a man and a woman is valid or recognized in California." (9) The California Supreme Court rejected a challenge to including the initiative on the ballot, (10) and on November 4, 2008, California voters approved Proposition 8, 52.3% to 47.7%. (11) Immediately after, same-sex couples seeking to marry, those who had been married before Proposition 8, and numerous California municipal entities filed suit to enjoin the measure's enforcement, on the ground that it was an improperly enacted constitutional revision that required the approval of a legislative supermajority before appearing on the ballot. (12)

The California Supreme Court, in an opinion by Chief Justice George, (13) held that Proposition 8 was not a revision to the state constitution, but merely an amendment. The court began by emphasizing that the case did not involve same-sex marriage per se, but rather was limited to the "scope of the right of the people ... to change or alter the state Constitution itself through the initiative process." (14) The court defined the effects of Proposition 8 in two ways. First, with regard to the due process aspect of the Marriage Cases, the court viewed the initiative as "carving out an exception to the preexisting scope of the privacy and due process clauses," (15) affecting only equal access to the word "marriage" and not the right to establish an officially recognized family relationship.

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