Prop 8 oral arguments, Part I

This post provides background. Prop 8 oral arguments happened on March 5. What exactly were the issues?

In May 2008, the California Supreme Court ruled in Marriage Cases that same-sex couples had a right to marry in California. The Court ruled that sexual orientation was a suspect classification under state constitutional law, and that laws forbidding same-sex marriage were a violation of the fundamental right to marry, as applied to gays and lesbians. Shortly thereafter, the state began issuing marriage licenses to same-sex couples. (A petition for a stay was denied). Approximately 19,000 same-sex couples married in California in the interim period between the Marriage Cases decision and November 2008.

In November 2008, voters approved Proposition 8, by a 52-48 margin. The proposition added new language to the state constitution that “Only marriage between a man and a woman is valid or recognized in California.” The state did not issue further marriage licenses after Proposition 8 passed.

The law was immediately challenged. Three cases raised a similar basic claim: That Proposition 8 was actually a constitutional revision, not an amendment.


California law allows some changes to the Constitution to be made by initiative; however, changes that significantly alter the Constitution in either a quantitative or qualitative way have to be done through a Constitutional convention. Those are called revisions.

Simply put, there is not a lot of case law on the topic. There have been a few cases (in particular the Raven case) which struck down amendments as going too far. And there have been a handful which did not. However, there is a vast amount of gray area in the middle. The goal posts on either end are these: An initiative cannot say that the court cannot find state constitutional protections more than the U.S. constitution provides (Raven); that’s a revision. But initiatives can do many far-reaching things, including restoring the death penalty. Where does Prop 8 fall on this continuum? That’s the key issue.

So the main argument being discussed was whether Prop 8 was in fact a revision (in which case, it was improperly passed; it would have to be added by constitutional convention) or whether it was a valid amendment.

The petitioners were the National Center for Lesbian Rights, the City of San Francisco, and private plaintiffs; on the flip side was Ken Starr, arguing that Prop 8 was not a revision.

An extra, weird wrinkle came from state Attorney General Jerry Brown. In general, Brown’s brief argued that both sides are wrong. The AG’s brief argues that Prop 8 was not a revision, but is invalid anyway, under a novel theory that since the state Constitution makes some rights (including liberty) inalienable, then aspects of those rights can’t be taken away, even if the authorization for doing that is in the Constitution. Or, in other words, that part of the Constitution was itself unconstitutional. That’s a pretty novel claim. That was issue number two up for argument.

The last issue up for argument was retroactivity. What happens to the couples who married in the interim? Starr’s brief argued that Prop 8 meant that marriages entered into in the interim would not be treated as valid, post Prop 8. The petitioners argued that there was no evidence that the proposition was meant to be applied retroactively.

That’s the basic background. The parties’ filings are available on the Cal Supreme Court’s website; the website also includes a good short summary of the litigation.

(I gave a short, simplified version of this background to a news reporter a few hours before oral arguments.)

So, what happened at oral argument? You’ll have to see Part 2 for that.

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3 Responses

  1. Aaron Titus says:

    In California, a “Revision” means essentially “to change the structure of the state government.” Abolishing the Judiciary, diminishing the authority of the Executive branch, or delegating the legislative power to some other branch than the Legislature, for example, would be an extreme examples of Constitutional Revisions (some of which, incidentally, might violate the US Constitution).

    In this case, to argue that legislation about the institution of Marriage constitutes a Revision seems like a stretch to me. The sexual orientation equal protection argument also doesn’t seem as clear-cut as some Prop 8 opponents make it out to be. There is a valid argument that the Constitutional amendment does not address sexual orientation, just sex. Though the right may be essentially useless for many, Heterosexuals and homosexuals have precisely the same right to marry someone of the opposite sex, regardless of their sexual orientation.

    I also have a hard time buying the AG’s Natural Law argument that the People lack the power to amend the Constitution against the terms of the Constitution. It seem rather counter-intuitive. After all, by definition almost every Constitutional Amendment is, by its nature, Unconstitutional until enacted into law. Otherwise it would not be called an Amendment, it would be called a “Reaffirmation.”

  2. A.J. Sutter says:

    Thanks for the explanation, Kaimi.

    On a more philosophical note, I wonder if Jerry Brown’s natural law argument has its roots in his Jesuit training?