The recent ruling by the California Supreme Court on the validity of Proposition 8 is a dangerous ruling for all minorities. The Court has handed the mob a loaded weapon that can too easily be used to pursue inappropriate discriminatory goals and agendas. The ruling undermines the judiciary's authority to protect minority rights and it substantially alters the California Constitution as a document of independent force and effect.
In its ruling, the Court has altered the procedural process regarding Constitutional initiatives having to do with civil rights. They have done so by removing the procedural requirement that initiatives affecting only individual liberties go through the more rigorous, deliberative process known as Constitutional revision (as opposed to Constitutional amendment). The implications of this ruling have a far-reaching and chilling effect on state constitutional rights as this ruling has eased constraints on the ability of the majority interests in our State to discriminate. Indeed, it has been a hallmark of our State Constitution, our Federal Constitution, and the very fabric upon which our political and social systems in this nation were formed that we operate on a system of majority rule with protection for minority rights. Great and honorable steps against "tyranny of the majority" have been undertaken throughout our history, and sweeping policy attitudinal changes and reforms have been imposed to protect the rights of the minority in society.
This is why, for example, it is against the law to refuse to hire an individual because of their race or ethnic origin; why it is illegal to deny equal access to government based on a suspect classification (such as race, gender, religion, etc). These issues are very often hotly contested and debated, yet to our credit as a people very often we have been able to rise above our own individual prejudices and dislikes. We have enacted laws that are designed to protect the members of a minority group, members of, in Constitutional parlance, a "suspect class." Race is generally considered to be the most easily recognizable example of a suspect classification, and there are indeed many others as well.
This assessment of the high Court's "invitation to discriminate" falls far short of mere speculation or conjecture; a discriminatory pattern of behavior by the majority towards minorities is a well-documented reality throughout history. Let us recall that Nazi Germany started with German citizens being stripped of their rights for no reason other than their religion, Japanese-Americans of this country went from curfew to internment, women were not allowed to vote, and blacks were "separate", "but equal," a concept that is all too blatantly adopted by the Proposition 8 ruling. The Proposition 8 ruling opens the door for a majority of California voters to adopt future measures designed to gradually reduce or eliminate fundamental rights of vulnerable minorities.
The right to marry is an integral component of an individual's interest in personal autonomy guaranteed by the privacy provision of the State Constitution and of the liberty interest protected by the due process clause. The Court in the Proposition 8 case states that same-sex couples still have a "core set of basic substantive legal rights" and that it simply changes the substantive content of the constitution in one specific subject area by "carving out" a limited exception to access to the use of the designation "marriage." The Court's euphemistic ruling failed, however, to simply "carve out" a limited exception to the recognized policy against discrimination. This Court simply hacked off and eliminated a slice of every California citizen's privacy, due process, and equal protection rights. The Court turns a blind eye (or perhaps a winking eye) to the powerful implications of this ruling. Just as it was decided long ago that separate is not equal for the black community, so it must be held for this particular minority group in our society: homosexuals.
There is indeed debate on the subject of what does and what does not constitute a "suspect classification" in our society, and agreement on that point is difficult to achieve. Indeed, many years ago such agreement was impossible to achieve on the subject of race. So it will undoubtedly be as to sexual orientation. California Supreme Court Justices Marvin Baxter and Ming Chin are on record as previously holding the opinion that sexual orientation is not "a suspect class" and thus not subject to a more stringent standard of review for state constitutional purposes. This is, in fact, a key point in this current debate, since arguably if sexual orientation is indeed characterized as a suspect class then laws that are enacted that impact the class will be subject to a standard of review of strict scrutiny, which gives rise to greater steps being taken to ensure that the members of the subject class are treated fairly and equally.
The Proposition 8 decision purports to simply change one specific subject area of the rule relating to access to the designation of use of the term "marriage," which (arguably) gives this court a backdoor means of circumventing the "strict scrutiny" standard required for equal protection. The language of the majority opinion indicates a tortured attempt to define exactly what right the State is now conferring on the people by virtue of the enactment of Proposition 8. The Court ruled that in common speech the term "right to marry" is most often used and understood to refer to an individual's right to enter into the official relationship designated "marriage." The Court decided that in order to minimize potential confusion in the future, instead of referring to this aspect of the State constitutional rights of privacy and due process as the "right to marry," they were now going to refer to this constitutional right by the more general descriptive terminology: "the constitutional right to establish, with the person of one's choice, an officially recognized and protected family relationship that enjoys all of the constitutionally based incidents of marriage (or, more briefly, the constitutional right to establish an officially recognized family relationship with the person of one's choice)." Isn't that so much easier and "less confusing"? The court "explained" that this constitutional right is distinct from the right to have one's family relationship designated by the term "marriage". The Court found that Proposition 8 had a narrow, limited effect upon the preexisting State constitutional right of privacy and due process and upon the guarantee of equal protection of the laws because the term "marriage" is mere nomenclature or terminology.
The conclusion of the Court that that the term "marriage" is merely a designation, and that Proposition 8 impacts only access to the use ofthe term "marriage" is, however, a clearly strained, forced trivialization of this issue and an erroneous characterization of the substance and meaning behind the term "marriage." This issue transcends the simple assignment of a designation of symbols. Words have context and significance in our society. Clearly, when you ban a minority group in our society from using the description "marriage" to characterize their relationship with their significant other, you are denying that relationship the equal respect and dignity that the State is obligated and constitutionally mandated to support. This is a far reaching discrimination of the most insidious kind that quietly and cloaked in a blanket of mere "terminology" stabs into the heart of the equal protection guarantees of the California Constitution and fundamentally alters its scope and meaning.
The Supreme Court took great pains to avoid reference to Proposition 8 as a ban on same-sex marriage. National and local newspaper headlines following the decision, however, still read "gay marriage and gay union ban upheld." On the day the Proposition 8 decision was released, the Governor of the State of California, Arnold Schwarzenegger, and one of the country's most prominent talk show hosts, Jay Leno, discussed and referred to the Supreme Court's decision as "the same-sex marriage ban," indicating that it was their understanding that in upholding Proposition 8 the Supreme Court had banned same-sex marriage as opposed to simply the use of the term "marriage" by same-sex couples as the California Supreme Court would have us believe. This perception by the public demonstrates that the Supreme Court's observation that the distinction over the use of the term "marriage" is (in the vernacular) "no big deal" is either a matter of wishful thinking on the part of the Court, a strained attempt to support what is otherwise an ill-conceived decision, or some combination of the two. The simple truth is this: opposite-sex couples are bestowed with the revered designation of "marriage" while same-sex couples are now handed the unfamiliar title of "domestic partners," thus perpetuating a lengthy history of discrimination towards homosexuals.
The word "marriage" is steeped in religious and social tradition, and history; through the centuries its context and our perceptions of its meaning have evolved. Only in recent history has the word been used by same-sex couples. Justice Carol Corrigan's previous reasoning that there is an age-old understanding of marriage as a relationship limited to that between a man and a woman and that same-sex couples are not similarly situated for the purpose of recognizing the availability of the label "marriage" is discussed in this ruling. This reasoning demonstrates a failure to recognize the current condition of society with regard to the concept of marriage, and a failure to recognize that a person's sexual orientation is an inappropriate basis for drawing these distinctions and for treating people differently.
The word "marriage" is imbued with social context and meaning as demonstrated by the controversy, polarization, unhappiness, and anger over its use. This begs the question, why are we using the term "marriage," one that is so historically based in religion, to describe and to designate a governmentally supervised, regulated civil partnership? Why not use the term "civil union" and leave the term "marriage" to religion? Let the religious organizations attempt to morally and ethically justify a theology that denies the marital union from a segment of society. Let these "institutions" attempt to make the argument that such is not bigotry. Where is the separation of church and state on the use of this historically religious word? Unfortunately, by embracing the historically religious use of the term "marriage" as a fundamental component of our mainstream society, yet then concluding that it has little meaning in the civil context, the Supreme Court has created a conundrum.
The Supreme Court is now allowing people to be treated differently based solely on their sexual orientation. The Supreme Court is also impinging on the privacy of all gay couples who may in the future contemplate a dissolution of their relationship, as every one of them will now be asked the question by a California family law attorney "Are you married or are you in a domestic partnership?" The California family law bar has already recognized that for purposes of dissolution and enforcing mutual rights and obligations, the Supreme Court has now established different classifications of people that family lawyers must treat differently because the process for dissolution of marriage and for domestic partnerships is different. There are privacy concerns of a group who must now consider the implications and "fallout" associated with being forced into this "other" category of "equal". Same-sex couples with children will be faced with school, camp, and physician's questionnaires that seek private information as to the status of the parental relationship. The designation of the word "marriage" (or lack thereof) will have far reaching effects on the children of these couples who will continue to be singled out, susceptible to prejudices and hate crimes.
It may be that heterosexual or atheist couples seek to demonstrate solidarity with the gay community by choosing to forego use of the designation "marriage" for their own unions. Opposite sex couples do not, however, have this option open to them as they are not entitled to apply for Domestic Relationship Partnership designation under California law unless they are over 62 years of age. Do we still perceive "equality" in the Supreme Court's decision?
A critical aspect of the Court's decision turned on the question of whether the enactment of Proposition 8 constituted a revision to the California Constitution or an amendment to the Constitution. Subject to certain procedural requirements, the California Constitution permits amendment by initiative through a simple majority of votes. A revision to the State's Constitution on the other hand can be proposed in one of two ways: the Legislature, by a two-thirds vote, may propose a revision of the Constitution to be submitted to the voters, or the voters themselves by a two-thirds majority of those voting "may submit at a general election the question whether to call a convention to revise the Constitution." The revision provision is based on the principle that comprehensive changes to the Constitution require more formality, discussion, and deliberation than is available through the initiative process.
In determining whether Proposition 8 constituted an amendment or a revision to the Constitution, the Supreme Court looked to prior cases that focused on the magnitude of the change. The previous court decisions used to determine what constituted an amendment as opposed to a revision assessed (1) the meaning and scope of the constitutional change at issue, and, (2) the effect - both quantitative and qualitative - that the constitutional change will have on the basic governmental plan or framework embodied in the preexisting provisions of the California Constitution, with a leading case noting that even a relatively simple enactment may accomplish such far-reaching changes in the nature of our basic governmental plan as to amount to revision. Previous cases have held that structural changes to the government be accomplished by revision as opposed to amendment.
Prior to this Proposition 8 case there was no precedent that limited the definition of a constitutional revision to one involving structural changes. In fact, none of the past decisions explicitly held that only a measure that makes a fundamental change in the state's governmental plan or framework could constitute a constitutional revision. The Court's consideration of an initiative that would selectively deprive some but not others of a fundamental right in this context of revision versus amendment had simply never come up in past case law.
As this was a case of first impression, the Supreme Court had the freedom to expand its previous holdings and make the determination that this was in fact a revision to the California Constitution and was thus impermissible. The judicial branch has the duty to restrain the majority from infringing on the rights of a minority. The public perception of the substance, significance, and meaning surrounding the description of "marriage" is such that the withholding of such designation from a "suspect class" has a broad impact on foundational principals. The act of reserving the official, traditional, and somewhat revered designation of "marriage" for heterosexuals is clearly broad in scope and impact. It sends the message to society that it is acceptable behavior to treat gay individuals differently than heterosexuals and accord them lesser status. This initiative required discrimination and constituted a far-reaching change to fundamental core foundational constitutional principles of law, the constitutional guarantees of privacy, liberty, and equal protection.
Instead, however, the Supreme Court has now issued a ruling that limits California Constitutional revisions to "structural changes." Before this ruling a qualitative revision included (rather than required) one that involved a change in the basic plan of California government. Under this new rule, constitutional initiatives affecting only individual rights will be deemed mere amendments rather than revisions because they fail to affect governmental organization. The court has eliminated the right of the people to challenge constitutional changes that deprive individuals of constitutional protections on the basis that the initiative is a constitutional revision. The court has limited individual liberties by exempting constitutional amendments affecting only individual liberties from the procedural requirements for constitutional revision. The Court has concluded that compliance with the revision procedure is mandatory only for changes affecting governmental organization and structure. Initiatives affecting only individual liberties no longer have to go though the more formal deliberative revision process. The court then found that as a qualitative matter, the act of limiting access to the designation of "marriage" to opposite-sex couples does not have a substantial or, indeed, even a minimal effect on the governmental plan or framework of California that existed prior to the amendment. The Court thus held that Proposition 8 was a valid amendment and permissible change to the California constitution enacted by 52.3% of the majority vote.
Supreme Court Justice, Carlos Moreno, the lone dissenting justice finds the Court's ruling in this case erroneous, advising that this was in fact a revision to the California Constitution as opposed to a mere amendment. Moreno stated, " Proposition 8 represents an unprecedented instance of a majority of voters altering the meaning of the equal protection clause by modifying the California Constitution to require deprivation of a fundamental right on the basis of a suspect classification. The majority's holding is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution."
The concurring opinion by Justice Kathryn Werdegar indicates that the Justice is clearly troubled by the effect of this ruling on civil rights, as she rejects the Court's analysis that a "revision" is one focused on governmental structure and organization. In describing the drafting process for the California Constitution, the Justice notes, "the task on which these delegates embarked was to create a legal structure for a society, not just for a government. To conclude they intended to protect individual liberties less jealously, and to give them less permanence, than the forms of governmental organization and structure is unsupportable." Justice Werdegar concludes that it is the scope of the change rather than the subject matter that is significant, and that in her view the limit on the designation of the word "marriage" was not a broad change in the principle of equal protection as to amount to a constitutional revision since same-sex couples are still entitled to all the rights of marriage. Justice Werdegar's opinion demonstrates conflict in this reasoning as she notes on one hand "that excepting the name," same-sex couples are entitled to enjoy all of the rights of marriage but on the other hand she recognizes that there are remaining important differences between marriage and domestic partnership both in substance and perception.
The Supreme Court's ruling on Proposition 8 is a travesty for the gay community and for all citizens of California. The gay rights march towards equality will continue and will ultimately prevail, either in the courts or at the polls as generational attitudes change. The train has left the station, so to speak, as 18,000 gay marriages have now been recognized in California and other states around the country are beginning to recognize these marriages. The best interest of the children must be a foremost priority. This is becoming a Byzantine mess for the Family Law Bars around the world as these family units start to move around the country and internationally. Like it or not, the world is on a global trajectory towards same-sex marriage. Common ground on streamlined uniform codification both nationally and internationally on how these relationships and the children of these relationships are to be legally and equally treated is necessary to prevent further discrimination.