If marriage ban is upheld, what--and who--is next?
If the California Supreme Court upholds Proposition 8 this spring, a move many same-sex marriage supporters fear but many legal experts expect, the next question may be just how big a hole in traditional Constitutional protections will that decision punch.
"If they uphold it, then they’re going to have to say something about the ’suspect class’ argument," former Supreme Court Justice Joseph Brodin told EDGE. "They’re going to have to say that anything affecting a suspect class doesn’t automatically make it a revision."
"Suspect class" and "strict scrutiny" are legal terms that play major roles in the judicial battles behind the scenes and could play major roles in defining the court’s decision but are seldom bandied about by laymen when they are talking about equal protection and majority role. A "suspect class" is a discrete, identifiable minority traditionally discriminated against that lacks the political muscle to defend itself, thereby requiring the highest level of "strict scrutiny" by the courts to see if there is a compelling state reason the impinge upon it.
The most revolutionary aspect of the state’s Supreme Court decision last spring allowing same-sex marriage was its finding that sexual orientation is a suspect class. In terms of civil rights, queers are the new kid on the block. The court’s decision was the first declaration of its kind and had homophobes howling. Sexual orientation enjoys protected status in California -- but what meaning does that have without federal protection?
If Prop 8 is upheld, UC Hastings College of Law Professor Calvin Massey told EDGE, "I don’t think there is anything that could stop an amendment that would preclude same-sex couples from adopting, for example, or any other horribles. The problem here is that there isn’t federal law (protecting) same-sex marriage or (sexual) orientation."
Gay adoption was one of the rights that attorney Kenneth Starr, representing Prop 8 defenders in the oral arguments heard by the court this month, told the court could be amended out of the Constitution down the road if the Prop 8 defense succeeds.
Immediately after the hearing, many publications suggested the questions asked by the justices indicated the court was likely to uphold Prop 8, closing the door on marriage equality. But Grodin, now an emeritus professor at Hastings College who was appointed in 1982 to the court by then Gov. Jerry Brown before being voted out in 1986 with Justice Cruz Reynoso and Chief Justice Rose Bird, knows how perilous jumping to conclusions on the basis of questions can be.
"It’s always dangerous to predict the outcome on the basis of the questions being asked," Grodin said. "A judge may ask a question because he may not be sure himself how he works it out, or because he’s trying to give counsel an opportunity to persuade his colleagues who are of different views."
Massey concurred, saying, "People are always premature to assume an outcome from the questions the justices ask. What the court asks doesn’t necessarily signal what the outcome will be. They might ask questions that appear antagonistic to the position they eventually take. Prediction is a dangerous art when it comes to judicial position.
"So I don’t have a ’take’ on the questions. My take on the case is, if they follow existing case law, they will rule it was an amendment, not a revision. This is a constitutional matter. The question is really the scope of the people’s ability to amend their own constitutions."
That’s been the unanswered question in California ever since the Progressive movement gave the electorate the right to vote in amendments by initiative in 1911. Since then the line between revisions -- which require a two-third majority in both houses of the Legislature as well as a popular vote -- and amendments --which can be passed just by a simple majority of the voters -- has remained a blurry, ill-defined line.
In its 2008 ruling allowing same-sex marriage, the court decided that marriage is "so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process."
What could not be taken away previously by a statutory initiative, Prop 8 seeks to remove by amendment initiative. And nothing in case law definitively states that an erosion of civil rights must be done by the more restrictive revision process rather than the volatile amendment process.
In a paper on revisions and amendments published earlier this year in the California Journal of Politics & Policy looking at the Prop 8 challenge, Grodin wrote, "The terms ’amendment’ and ’revision’ are not defined in the constitution, and prior case law is frustratingly opaque."
He concluded his paper by saying, "Beyond the pending case, it may be time for Californians to rethink more generally the manner in which the state constitution, and especially those provisions relating to individual and minority rights, should be subject to change. For that matter, it is long past time for Californians to rethink the uses (and abuses) of the initiative process, but that may be wishful thinking."
And as for those 18,000 or so same-sex marriages that were performed that Prop 8 supporters argue ought to be invalidated?
"That question turns on one of two principles," Massey said. "One is the face of the language (of Prop 8), which is unqualified in saying that they will not be recognized -- that would nullify them. The other one is that it didn’t expressly say it was retrospective. That’s a more difficult proposition to analyze. I have no good feeling on how they will decide that. I have a hunch they’ll preserve the validity of the marriages -- but it’s only a hunch."
Grodin had the same hunch that both Prop 8 and the existing same-sex marriages would be upheld.
"If I had to predict, that’s what I would predict," he said. "But it’s always risky."
"I understood some of the justices to be suggesting that even if Prop 8 is upheld, certain propositions contained in the (2008) case will still exist and continue to benefit the gay and lesbian community. Orientation would still be a ’suspect class’ and would still be subject to ’strict scrutiny.’ There’s still a lot of protection."
And as for resolving the question of what should be a revision and what should be an amendment?
"Short of amending the Constitution," Grodin said, "we’ll have to see what the Supreme Court has to say about that."