Friday, November 07, 2008

Revision or Amendment?

The California Constitution permits "amendments" to the Constitution by mere majority vote in a statewide referendum (although to get a state-constitution-amending initiative on the ballot requires more signatures than to get a regular-state-law-creating initiative on the ballot). However, some provisions can't be changed by amendment. What the California Supreme Court has characterized as far-reaching change to the fundamental constitutional plan requires a "revision" to the state constitution, which can only be accomplished if 2/3 of the state legislature first proposes the measure and it is then approved by the voters.

Did Prop 8 mark a fundamental change to the California Constitution of the sort that can only be accomplished by a "revision?" So argues a petition filed in the California Supreme Court on Wednesday, seeking an injunction against the enforcement of Prop 8. Having read the petition, I should say that it is hard to separate the fundamentality question from the underlying equal protection issue.

The petitioners note that "the right to equal protection has been part of the California Constitution since its inception. Thus, they say, it would surely require a constitutional revision to abolish the California state requirement of equal protection itself. This would not be an empty gesture. Although the Federal Constitution's Equal Protection Clause already applies to California, elimination of the state's own equal protection clause would eliminate the possibility that the state courts could find violations of the state version in circumstances in which the federal courts would find no violation of the federal version. And indeed, in Raven v. Deukmejian, the California Supreme Court held that a change by which California courts would be stripped of the power to find violations of various criminal procedural protections, requiring them to interpret the state provisions in "lockstep" with the parallel federal provisions, was indeed a revision, not a mere amendment.

Prop 8, of course, does not eliminate equal protection. It has the effect of changing the interpretation of equal protection in one context: same-sex marriage. That smaller, fine-grained change, some scholars argue, makes it a less than fundamental alteration, and thus one that can be accomplished via amendment. (See, e.g., here.) The petitioners (who filed before Prop 8 was on the ballot but whose petition was simply held by the California Supreme Court, no doubt in the hope that the voters would make its resolution unnecessary) argue that despite its few words and seemingly confined subject matter, Prop 8 makes a sweeping change, because it carves out an exception to the fundamental principle that discrimination against a suspect class triggers strict scrutiny.

My gut (which, per Stephen Colbert, I always consult) tells me the petition will fail. Partly this is a matter of realpolitick: the Justices could lose their jobs over this sort of thing. Partly this is a matter of doctrine. One might more readily characterize Prop 8 as standing for the view that the prohibition on gay marriage does not discriminate on the basis of sexual orientation, or that sexual orientation isn't a suspect classification, or that straight-marriage-only laws satisfy strict scrutiny. Or the Court might think that carving out an exception to strict scrutiny in one area isn't a fundamental change.

Yet the doctrinal arguments hardly seem so easy. The California Supreme Court invalidated the state's anti-miscegenation statute on state constitutional grounds in Perez v. Sharp, in 1948, long before the Supreme Court took the same step on federal constitutional grounds in Loving v. Virginia. Suppose that following Perez (but before Loving), someone proposed defining marriage in California as "the union of a man and a woman of the same race." Is it obvious that this would not have been the sort of fundamental change---an expression of white supremacy antithetical to the very principle of equal protection---that requires the use of the revision process rather than the amendment process? And if that change would have required a revision, then can one really say that the petitioners' claims here are doomed? A court that thinks the same-sex marriage prohibition denies equal protection is likely to regard the case as similar to my hypothetical example.

That is not to say that the petition will win or even that bringing it was such a great idea: It could inspire an even worse backlash and thus make it harder to undo Prop 8 in some future year. Moreover, as I argued (here) just after the California S Ct's decision back in May, part of what justified the decision to invalidate the same-sex marriage ban in the first place was the possibility of popular revision. The California Supreme Court may well take a similar view.

Finally, it's worth noting how ill-defined the distinction between "amendments" and "revisions" is. Some other constitutions with similar distinctions are much clearer about which specific provisions are subject to change by what mechanism.

Posted by Mike Dorf