Immediately after Californians approved Proposition 8, an initiative measure amending the state constitution to declare that only a marriage between a man and a woman "shall be valid or recognized" in California, opponents have filed a petition for writ of mandate with the California Supreme Court. The contention is that Prop 8 is invalid because it constitutes a "revision" of the California Constitution instead of an "amendment." While amendments may be added by popular initiative, revisions can only be accomplished by either a constitutional convention plus ratification by the people, or legislative proposal ratified by the people. The leading case on the distinction between an amendment and a revision is Raven v. Deukmejian, 52 Cal. 3d 336 (1991), in which the California Supreme Court ruled that a portion of Prop 115, an initiative, was a revision and thus unenforceable. The provision found to be a revision specified that most of the state constitutional rights afforded criminal defendants could be interpreted no differently than the US Supreme Court interprets the analogous right under the federal Constitution. The California court placed most reliance on the fact that the effect of the measure was to strip the California courts of any independent authority to interpret the state constitution, and that this was a fundamental reorganization of the constitutional structure.
Enter Prop 8. At least two other cases, People v. Frierson, 25 Cal. 3d 142 (1979), and Crawford v. Board of Education, 113 Cal. App. 3d 633 (1980), affirmed 458 U.S. 527 (1982), have held that popular initiatives that materially changed the meaning of a central constitutional right were amendments, not revisions. Frierson upheld an initiative reinstating the death penalty after the California Supreme Court had ruled that capital punishment violated the state constitution's prohibition on cruel and unusual punishments. Crawford implicitly held that an initiative eliminating busing of students to accomplish racial integration in cases of de facto (rather than de jure) racial discrimination was not a revision. (The initiative was a reaction to a prior decision of the California Supreme Court holding that unintentional, de facto, racial segregation in the public schools violated the state constitution's equal protection clause.) The contention of the Prop 8 opponents in Strauss v. Horton is essentially that an elimination of a judicial intepretation of California's equal protection guarantee works such a fundamental change in the constitutional structure than it can only be accomplished by revision. Yet, Frierson and Crawford upheld initiatives that did just that. (Crawford did so at most by implication.) The Prop 8 opponents distinguish both cases (the Frierson change applied to all Californians, Prop 8 only applies to gays and lesbians; Crawford only involved a remedy), but I am not convinced by either attempt to distinguish these cases. Raven involved a complete abdication of constitutional independence; Prop 8 is a specific limit on the intepretation of California's equal protection guarantee but otherwise leaves California courts free to do what they have always done in interpreting the state constitution.
I understand why Prop 8 opponents prefer to kill Prop 8 under state law: The adequate and independent state grounds doctrine would insulate a decision that Prop 8 is a revision from further attack, and it is improbable that a new version of Prop 8 could return as a proposed revision. But the political stakes for the California Supreme Court are very high. Former California Supreme Court Justice Otto Kaus once quipped that judicial ignorance of the will of the people is like ignoring the alligator in your bathtub. Lurking behind Strauss v. Horton is the memory of the people's removal of three California Supreme Court justices twenty years or so ago over the issue of the death penalty. "Vote Three Times for the Death Penalty," was the rude slogan then, and it worked. I doubt that the current crop of justices are unaware of that episode in California's history.
For better or worse (no pun intended), this is an issue that ultimately must be fought out in the context of the federal Constitution. Finally, to be clear, I have no stake in the outcome of Strauss v. Horton. I write as an observer, not an advocate for either side. by Calvin Massey as seen on The Faculty Lounge