The same sex marriage Prop 8 case will likely be decided by the California Supreme Court on an issue that will never be directly addressed by either the lawyers or the Court.
The primary legal issue at Thursday's hearing before the California Supreme Court on Prop 8 is the narrow and extremely arcane question whether Prop 8 is an amendment to the state constitution or a revision of the state constitution.
An amendment to the state constitution may be placed on the ballot by either a two-thirds vote in the state legislature or signatures equal to 8% of the votes cast in the last gubernatorial election.
In contrast, a revision of the state constitution requires both the approval of two-thirds of the legislature and a majority of voters.
In other words, while the voters in California have the right to amend their constitution by a simple majority vote through the use of ballot propositions, any revision of the constitution’s ‘underlying principles” requires a far more deliberate and complex process involving a two-thirds vote of the legislature followed by the submission of such proposed changes either directly to the voters or to a constitutional convention.
Prop 8 was never endorsed by two-thirds of the legislature.
Accordingly, if it is an amendment to the constitution, it is legally valid; if it is a revision of the constitution, then it is not.
There is little or no case law or commentary to help the Court decide whether Prop 8 is a (valid) amendment or an (invalid) revision.
The pro-Prop 8 lawyers will argue that the proposition changes only a small part of the constitution that applies only to a small group of people, and is therefore merely an amendment and hence valid.
The anti-Prop 8 lawyers will argue that because the proposition attempts to negate a fundamental right, it is a substantial revision of the constitution and hence invalid.
But appellate cases – and especially high profile and controversial appellate cases -- are rarely decided on such narrow and arcane questions of law, even though lawyers and judges must pretend that they are.
Such cases are decided on the basis of the judges’ assessments of their consequences, and not merely the direct consequences to the litigants.
What’s really at stake in the Prop 8 case – and what will probably be the real deciding factor in the California Supreme Court’s decision – is the power and prestige of the California Supreme Court itself.
Prop 8 aims to overturn the California Supreme Court’s 5-4 decision in The Marriage Cases (2008), where the Court held that “the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own -- and, if the couple chooses, to raise children within that family -- constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society,” and that “in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.”
If this decision of the California Supreme Court, based on what it described as a “fundamental constitutional right,” can be overturned by a simple majority of voters in a ballot proposition, then the purportedly “fundamental” state constitution carries no more weight than a simple statute -- and arguably even less weight, since a statute requires either the approval of a majority of the legislature and the signature of the governor or a two-thirds vote of the legislature.
And since appellate judges see themselves first and foremost as guardians of the constitution, if the constitution is diminished, then the judges are correspondingly diminished as well.
In our national history, the United States Supreme Court had little prestige until Chief Justice John Marshall declared in Marbury v. Madison (1819) that the Court, as the ultimate interpreter of the constitution, had the power to invalidate legislation as contrary to the constitution as (in the words of Article VI) “the supreme Law of the Land.” John Jay, the first Chief Justice, had resigned in 1795 and declined reappointment in 1800 because, in Jay’s words, the Court lacked “the energy, weight, and dignity which are essential to its affording due support to the national government.”
If the California Supreme Court fails to invalidate Prop 8, it will be declaring itself similarly to lack “the energy, weight, and dignity” that is essential for it to be a coequal branch of government.
For that reason, apart from and more importantly than any other, I expect that the Court will hold Prop 8 to be invalid.