I'll say this for the No on 8 crowd -- we don't waste our time. Three lawsuits were filed today with the California Supreme Court, seeking orders blocking enforcement of Prop 8 and aimed at striking it down, and the count isn't even done yet!

"But, Meredith," I hear you say, "this is a constitutional amendment -- aren't the Supreme Court's hands tied?" Actually, due to the approach the plaintiffs are taking, the CA Supreme Court does have the ability to consider this. The legal reasoning behind the lawsuits is interesting, and if you live in California, it's worth your time to understand it.

First of all, there are two ways to change the California state constitution. This brief from UC Berkeley explains it quite thoroughly, and the first paragraph sums it up (emphasis in the original):

Specific changes to the California constitution may be proposed by amendment. Substantial changes may be proposed by a constitutional convention or by the legislature as constitutional revisions. Regardless of their origin, all changes must be approved by a majority of the electorate voting on the issue.

Now, at first it sounds like Prop 8 is pretty specific -- it's focused on a single issue (i.e., marriage). However, ignoring for the moment the fact that the Constitution is not a family law document, the issue of marriage actually has bearing on a number of other rights which are already enshrined in the California constitution. On May 15, 2008, the California Supreme Court said the following in its ruling on six consolidated appeals which led to statewide gay marriage:

We therefore conclude 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.

In other words, the California Supreme Court put a proximity bomb in its decision by establishing that changing the right to marriage is a substantial change. Burn!

Okay, but what's so substantial about it? I'm so glad you asked. Let's review the recent legislative history of gay marriage in California, and the reasoning will become clear.

When these six previously mentioned cases were on their way up through the courts, the plaintiffs argued to the California Superior Court that the existing state laws prohibiting gay marriage were unconstitutional for three reasons:

1. Due process
2. Right to privacy
3. Equal protection clause

(Yep, the right to privacy is enshrined in the California state constitution. But what does that have to do with marriage? Well, read on.)

The Superior Court limited its review to the equal protection issue and held that the marriage laws were unconstitutional. I'm not sure why they decided not to get into the due process and privacy issues. When the case was appealed, the Court of Appeal reversed the Superior Court's ruling, saying that the argument failed to meet the standards for the equal protection clause. In order for the equal protection clause to be invoked, two things have to happen: one, some constitutional right must be infringed, and two, the people whose rights are being infringed must belong to a "suspect classification". The Superior Court had held that marriage full stop was a constitutional right and that the plaintiffs were being discriminated against on the basis of gender. The Court of Appeal said no, marriage is a right but same-sex marriage isn't. They also said that the discrimination took place on the basis of sexual orientation, not gender, and that sexual orientation doesn't constitute a suspect classification. (SCOTUS agrees with this so far, by the way.) They made this claim using the rational basis standard of scrutiny -- the lowest level of scrutiny used in judicial review -- essentially saying that the state has an interest in regulating marriage (understandably so, as marriage provides tax breaks and therefore affects state revenue). In effect, though perhaps not overtly, they invoked the Necessary and Proper Clause (which allows the legislature to regulate things as it is "necessary and proper" to do so) to limit the definition of marriage.

The Court of Appeal also held that existing domestic partnership laws were sufficient and did not require that the definition of marriage be expanded to include same-sex couples.

This is all fairly bog-standard stuff, and it's why SCOTUS hasn't granted suspect class to gay couples yet. However, the Supreme Court dug deeper, and found that privacy still mattered. Why? Because in California, you can have a confidential marriage. In one of these, the marriage certificate and date of marriage are not a matter of public record. You can't have a confidential domestic partnership. Thus, one of the disparities between marriage and domestic partnership is a matter of the constitutional right to privacy in California.

Okay, fine, so amend the domestic partnership law to allow for confidential domestic partnerships and that should take care of it, right? Wrong. Apart from this, California case law has repeatedly held that the right to marriage and intimate association are fundamentally aspects of the right to privacy, and that this right is inalienable. It cannot be taken away.

Another one of these inalienable rights is the right to due process of law. Now we visit the Ninth Circuit, Smelt v. Orange County 2006. Here, the federal court held that a same-sex couple in a domestic partnership lacked standing to mount a challenge to the Defense of Marriage Act. But the California Domestic Partnership Act specifically states "To the extent that provisions of California law adopt, refer to, or rely upon, provisions of federal law in a way that otherwise would cause registered domestic partners to be treated differently than spouses, registered domestic partners shall be treated by California law as if federal law recognized a domestic partnership in the same manner as California law." Domestic partners are supposed to be able to act in California as if federal law granted them all the benefits of marriage (explicitly stated in the Domestic Partnership Act). A Federal court has ruled that they can't. A same-sex married couple could challenge DOMA. The laws are in contradiction!

And, for the hat trick, back to equal protection for a minute. The Supreme Court unqualifiedly rejected the Court of Appeals' position that the plaintiffs wanted a constitutional right to same-sex marriage, and upheld the Superior Court's position that they wanted the constitutional right to marriage upheld. They based this on past cases involving interracial marriage, where the plaintiffs were not found to be seeking a "right to interracial marriage" but merely the right to marriage, and on the reproductive freedom of a developmentally disabled woman, where past cases had not hinged on the "right of reproductive freedom for the developmentally disabled". They specifically characterised the plaintiffs' argument as wanting "the right of an individual to enter into a consensual relationship with another person" to be upheld.

I'll say that again, because it's so important: The California Supreme Court has already held that the right of an individual to enter into a consensual relationship with another person derives from inalienable rights, and that the gender of the partners is irrelevant.

Restricting the right to marry therefore violates three fundamental aspects of the California constitution. Proposition 8 is not a "specific" change by any stretch of the imagination; it has direct effects on rights specifically designated "inalienable" in the state of California, and thus it must be considered a substantial change, just as the Supreme Court provided for in its decision. Thanks, guys!

In other words, Prop 8 should never have been on the ballot in the first place. Were the people of the state of California ever to have voted on it, it should have been proposed by a two-thirds majority of the legislature.

This brings us to this summer, when Equality California" filed a 55-page petition with the California Supreme Court seeking to have Prop 8 removed from the ballot, for the reasons I've just expanded on and several others besides. The Court declined to hold a hearing on the petition, and did not comment on their decision.

Why the fuck did they do that? Well, I have a somewhat tinfoil-hatty guess, though it would also be awesome if my legal-affiliated readers, such as songblaze and wealhtheow, would chime in with their ideas.

Consider: Supporters poured over $28 million into Prop 8 campaigning. Opponents actually raised more than that by the week before the election, but back in September, opponents were $8 million behind. Prop 8 campaigning was already well underway back in July, and it sounds like supporters were ahead back then.

The thing about judges is that their hands are mostly tied. They can't do anything directly; they have to wait for cases to come to them, and Supreme Court justices have tremendous discretion with respect to what cases they will hear. However, if I were a particularly sneaky judge, I might look at the lay of the land before deciding whether to remove a measure from the ballot. If Prop 8 had been removed, the then-wealthier supporters could have simply plowed all that money into state legislature campaigning in an attempt to pick up the two-thirds majority needed to place a constitutional revision before the voters, then pushed a revision through in the very next legislative session.

It's an issue of timing. Leave Prop 8 on the ballot, and if it gets voted down, great, they don't have to get tarred with the "activist judges" brush. If it passes, the Supreme Court can still hear the case for striking the amendment after the fact. (Yes. They can. They've done it before.) Meanwhile, the Prop 8 supporters don't have anywhere near enough legislators to get a revision before the voters.

That's speculation, of course. But it reads to me like a sucker play on the Prop 8 supporters.

Next up: what's happening right now, what the next few months mean to you, and what the hell is going on with existing marriages.

Mad props to songblaze for research assistance and getting me thinking about it from this angle.


This work by Meredith L. Patterson is licensed under a Creative Commons Attribution 3.0 United States License.