Analysis on California Supreme Court Hearing on Proposition 8

The California Supreme Court heard an oral argument earlier this month on the validity of Proposition 8, a measure banning same-sex marriage that California voters approved in November 2008. The televised closely watched session had people nationwide mass text-messaging on Twitter as if calling a sporting event giving moment by moment real-time updates and often colorful impressions on the Supreme Court hearing. The Supreme Court decision will be historic and have implications for decades to come determining the fate of same-sex marriage in the State as well as the validity of an estimated 18,000 same-sex marriages already performed in California.

In May 2008, California State Supreme Court ruled that California’s prior ban on same-sex marriage was unconstitutional because it deprived gay couples of the right to wed. Proposition 8, a statewide ballot initiative, passed in November with about 52 percent of the vote. This made California one of several states to ban same-sex marriage, thus erasing last May’s Supreme Court ruling. California had been issuing marriage licenses to same-sex couples since the state Supreme Court ruled on May 15 that the unions were legal and continued to do so until the votes on the initiative were certified. Civil rights groups, same-sex couples, and a number of local governments, including Santa Clara County and the City and County of San Francisco sued to block enforcement of Proposition 8.

The California Supreme Court issued an order to show cause in three cases challenging the constitutionality of Proposition 8. The cases were Strauss et al. v. Horton, Tyler et al .v. State of California et al. and City and County of San Francisco et al. v. Horton. The Court directed the parties to brief and argue the following issues: (1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (2) Does Proposition 8 violate the Separation of Powers doctrine under the California Constitution? and (3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8? The Supreme Court has received an avalanche of amicus curiae briefs known as “friend of the court” briefs giving arguments on both sides of these issues from various groups who believe that the Court’s decision may affect their interests.

After oral argument the court took the issues under submission and has up until June 5, 2009, to decide whether it will uphold Proposition 8, though there is speculation in the legal community that this decision is bound to come sooner rather than later since the lives of an estimated 18,000 same-sex couples who have already married under California law hang in legal limbo. The Wall Street Journal, The Los Angeles Times, and other news media have reported that the California Supreme Court indicated that it will uphold Proposition 8 but will also let the marriages that have already taken place stand. If that projection is correct, it will essentially make for three classes of people in California; those who can marry, those who can’t marry, and the limited class of approximately 18,000 same-sex couples who married during a window of time when the California Supreme Court allowed same-sex marriages to take place.

Hundreds of California family law attorneys have already attended 2009 Annual Family Law update seminars which included education to stay abreast of the status of same-sex- marriage in California and the potential legal ramifications. At a recent Family Law Seminar a well-respected retired California Family Law Judge noted that family law is one of the most all-encompassing and complex areas of law since the cases touch upon so many different aspects of the law. The judge stated, “Family lawyers must keep up on more topics than any other kind of lawyer.” In addition to education on core and recent family law cases, attorneys practicing in this area educate themselves on peripheral issues having to do with estate planning, bankruptcy, immigration, real estate, pensions, business valuations, litigation, criminal, employment, finance, and tax law to name a few.

The already complex field of family law will become even more intricate if the estimated 18,000 same-sex marriages are allowed to stand, creating three classes of people. These couples and their families would in all likelihood incur more legal fees and costs associated with resolving the issues that pertain to their particular class, including the peripheral issues mentioned above and other issues relating to adoption, parentage, and tax implications.

At a recent California San Fernando Valley Bar Association seminar entitled, “After Proposition 8, Now What?” California family law attorneys who are currently seeing the first round of gay and lesbian couples contemplating divorce and family law issues from the same-sex marriages that have taken place were advised to hold off filing for same-sex marital dissolutions until a Supreme Court decision is rendered. Questions have already arisen from divorced heterosexual former spouses who are paying spousal support and now wish to stop payment because their former spouse has now entered into a same-sex marriage. The Conference of Delegates of California Bar Associations has recommended legislation seeking to streamline the procedural process governing dissolutions if two people are registered domestic partners and are married. Many of the same-sex couples who were allowed to validly marry in California were already registered as domestic partners and many of them registered concurrently with or subsequent to marriage, resulting in a dual status. Present law suggests that those couples must file two separate petitions in order to dissolve both statuses instead of one petition.

Should the Supreme Court create a third class of people who fall into a different category of family law that in all likelihood would require those couples to incur additional legal fees and costs associated with litigation, contrary to the California State Bar policy of making the legal system as open, available, and cost-effective as possible? Legal questions still go unanswered as to whether the California Courts will have jurisdiction to dissolve marriages from the states of Connecticut or Massachusetts, which allow same-sex marriages.

It is erroneous to assume that the Supreme Court is going to allow the estimated 18,000 California same-sex marriages to stand though there was a strong indication from the Court that the marriages should be upheld after already receiving the right by the highest court of the State. The California Supreme Court Justices entertained the argument on Proposition 8 being applied retroactively and questioned whether it was the intent of the voters to invalidate the same-sex marriages retroactively if Proposition 8 was upheld. Here they looked to language in the ballot stating that “marriage is between a man and a woman regardless of when or where performed,” indicating that the words “when or where” were significant and could indicate that the voters meant to ban even the marriages that have already taken place. It was argued in opposition that the language of the ballot failed to address prior marriages and is thus too vague and ambiguous to be applicable to existing marriages. There was an indication from the Court however that Proposition 8 turns on the intent of the electorate rather than the drafters and the electorate by voting that marriage should be “between a man and a woman,” and that it appears to have intended to disallow same-sex marriages. In addition, the Supreme Court looked at the word “is” in the Proposition 8 initiative sentence, “Marriage is between a man and a woman,” suggesting that if the “is” is read as a present tense then past marriages may be viewed as void. The Supreme Court may also be reluctant to allow same-sex marriages to stand because it could create such a potential legal and social quagmire for a small class of people.

There is some legal thought that the marriages may not stand if Proposition 8 is upheld but may instead be treated as putative marriages. A putative marriage is a remedial doctrine designed to protect the reasonable expectation of someone who acts in good faith on the belief that they are married and in ignorance of the existence of those facts which constituted a legal impediment to the marriage. A putative marriage may be null and void but it generally entitles a putative spouse to the rights a legal spouse would have in a divorce for, among other things, division of property for the period from the putative marriage until the discovery that the marriage was invalid.

The California Supreme Court may be able to avoid the issue as to the status of the same-sex marriages that have already taken place. The Court may very well produce a ruling that Proposition 8 is unconstitutional without reaching the issue of the Proposition’s effect on the same-sex marriages already legally performed. After the broadcast of the California Supreme Court hearing, many in the media predicted that the Court indicated that it would uphold Proposition 8. The media may have failed to recognize that court justices at a hearing are sometimes posing questions simply to educate the public, play devil’s advocate, or present questions posed in a declarative manner to convince other judges on the panel. This is a case where these Supreme Court justices are under a tremendous amount of personal and political pressure. The world is watching this decision that will come from a country known for equality and tolerance for all. It is ill-advised to simply look to the oral arguments themselves to make a determination of the outcome. These judges and their law clerks have read through dozens of positions advocated in amicus curie briefs from experts around the country who have laid out positions in written briefs that can be far more succinct, articulate, and compelling than the pressure-cooker atmosphere of a broadcasted court hearing.

At the hearing, the justices wanted to know if a “suspect class change” constitutes a revision of the constitution, which may indicate an intention to overturn Proposition 8 based on a ruling that a revision occurs when the majority takes away a right that was previously considered inalienable from a suspect class. It is foreseeable that the Court will rule that the people have an inalienable right to amend the Constitution as they see fit, but a change to core constitutional guarantees of equal protection of the Constitution that would selectively deprive a disfavored suspect class of fundamental rights must be subject to the rigors of the Constitutional revision process. The Court could overturn Proposition 8 to preserve the institutional integrity of the Court and the California Constitution by refusing to allow the majority to reinstate discrimination. This Court has already ruled that same-sex couples have a right to marry. The framers of the California Constitution also recognized that the majority might seek to deny the rights of a minority, which is one reason the California Constitution has a core equality principle. The Constitutional framers placed safeguards on the initiative process by requiring that changes in fundamental constitutional notions of equal protection go through a more deliberative process.

Many confuse the issues of the recent Supreme Court hearing incorrectly thinking that the court is simply deciding whether or not to ban same-sex marriages. This is far too limited an approach. Rather, this case may be decided by determining if the procedure for placing Proposition 8 on the ballot was correct. The Court in this instance is looking to determine the constitutional validity of the method of the Proposition 8 initiative measure. The Supreme Court focused on whether Proposition 8 was a revision to the State of California’s Constitution or an amendment to the Constitution. California’s Constitution permits amendment by initiative with a majority of votes, but a “revision” may only be accomplished by convening a constitutional convention upon a two-thirds vote of both houses of the Legislature and obtaining popular ratification of the proposal to call the convention or by legislative submission of a proposed revision to the voters, again upon a two-thirds vote of both houses of the Legislature. The process of revision is more formal, deliberative, and difficult. Unfortunately, the California Constitution contains no clear definitions of which types of changes require the more difficult and deliberative process.

The People of California have a long-established inalienable right to change the Constitution as they desire, even in ways that are repugnant to individual liberty and embed discrimination into the Constitution. In determining whether this is a revision or an amendment to the Constitution, the Supreme Court is looking at prior cases that focus on the magnitude of the change. In delineating between amendments and revisions, courts have assessed both quantitative distinctions and qualitative effects of a measure on the constitutional scheme. In the quantitative portion of the evaluation, the Court inquires whether the measure has a direct, substantial impact on the text of the Constitution, such that its structure is altered. In the qualitative portion of prior court evaluations, the Court decides if the measure reallocates, reassigns, or creates rights in any of the constituent branches of government such that the fundamental framework of government is substantially altered. The qualitative distinction decisions have held that a structural change to our government is to be accomplished by revision, not an amendment.

It was noted by the Court that there is no precedent limiting the definition of constitutional revisions to structural changes. It was further noted by the Court that this is a case presenting an issue of the first impression with respect to considering another type of qualitative distinction. Just because one court previously described revisions as a restructuring of the government does not mean that the sitting Supreme Court cannot expand those previous holdings. Justice Kathryn Werdegar noted that just because the Court had never previously ruled that a measure like Proposition 8 was a constitutional revision fails to indicate that the law in this area is settled. She indicated that though the Court had previously described revisions as the restructuring of the government that doesn’t mean it must be. This is a case of the first impression because this case of fundamental rights related to gender discrimination is the first of its kind. Prior court holdings were not based on an analysis of the measure’s effect on citizen’s core constitutional rights. The Court’s consideration of a constitutional amendment that would selectively deprive some, but not others of a fundamental right has simply never come up in the past.

At oral argument the Court tackled the constitutionality of Proposition 8, noting that there were two sides, and thus both the challengers to Proposition 8 and its defenders (proponents) presented their arguments to the Court. The justices listened to arguments on whether this was an illegal constitutional revision as opposed to an amendment of the Constitution. It was noted that there is an established body of law from other states pertaining to what is or is not a Constitutional revision and that there was strong support for the People to have done what they did by a vote. The court noted that while some states do restrict the power of the people to change the constitution in California, the people have a very broad power of initiative. According to Proposition 8 defending attorney Kenneth Starr, the People hold the right to modify the state Constitution by adding or subtracting protections for civil rights. Supreme Court Justice Carol Corrigan seemed to acknowledge this argument when posing a question in a declarative manner, “Isn’t the essence of democracy grounded in the right of the people to govern themselves?”

Kenneth Starr, currently the Dean of Pepperdine law school and hired by the Proposition 8 campaign in arguing in favor of Proposition 8, stressed that the people of the State have an inalienable right to amend the Constitution as they see fit and that right supersedes all others. He stated that there is an extraordinary body of law that has developed over decades giving sovereignty to the people. Starr, who is also the former Clinton impeachment prosecutor, said the people hold the right to modify the State Constitution by adding or subtracting protections for civil rights. Starr agreed that the right to marriage and the right to free speech could be taken away by amendment and that we govern ourselves, even if we govern unwisely. Starr further argued that Proposition 8 did not take away all marriage rights but simply took away the label of marriage. He argued that it was simply nomenclature or terminology.

Challenging attorney Shannon Minter, a lawyer with the National Center for Lesbian Rights, and San Francisco Chief Deputy City Attorney Therese Stewart, who were both recently recognized by California Lawyer Magazine as “attorneys of the year” for legal work that made a profound impact in 2008, advocated to strike down Proposition 8. The challengers to Proposition 8 argued further that the initiative altered the right of a suspect class, a historically discriminated against the minority group. “An unpopular group cannot be selectively stripped of fundamental rights by a simple majority of voters,” argued Minter.

California State Attorney General Jerry Brown’s office was represented by Christopher Krueger, the Senior Deputy Assistant Attorney General, who asked the court to uphold the approximately 18,000 marriages and strike down the initiative as an illegal repeal of an inalienable right without compelling justification. Krueger argued that certain rights are “inalienable, fundamental rights,” and the people do not have unbridled power to take away fundamental rights from small segments of society.

The Court struggled with the issue of what exactly is an “inalienable right.” The Court further questioned, if an inalienable right is something that “we know when we see it?” A concern of the Court was expressed that the people’s initiative power could get shunted aside, noting that everything that could conceivably be characterized as an inalienable right could get sidetracked. Challengers questioned the inequity of imposing a rule that simply doesn’t apply to all that many people because to do so would arguably further isolate and discriminate against the small minority against whom the law does apply. The challengers argued that Proposition 8 would have very serious constitutional and human harms. Challengers argued that these harms were real and appreciable harms to families and children that will be exacerbated exponentially. Attorney Stewart, speaking for the challengers said that the framers of the Constitution knew and were wary of majority rule against minorities. The challengers further stressed protecting the legitimacy of the democratic process and the need to protect the essence of the Supreme Court’s previous marriage decision that gave same-sex couples the right to marry. The Court questioned, how can the majority reinstate discrimination that this Court has already ruled the Constitution prohibits?

The Justices also acknowledged amicus briefs submitted to the Court inferring that marriage has religious origins and that maybe we should call these all “civil unions” and have the State get out of the marriage business. Starr was asked if he would support “civil unions” for all, to which he responded “yes.” He also argued, however, that this Court lacked the authority to render such a decision here. Attorney Michael Maroko, representing one of the same-sex couples, advocated that ” if you are in the marriage business, do it equally.” The Court’s inquiry here may indicate that they are leaning towards fashioning a ruling that requires the State to use the term “civil union” rather than “marriage” for all couples, heterosexual or homosexual, though that solution may not be within the province of this Supreme Court.

Gay marriage opponents have vowed a political campaign against the justices who vote to overturn the ban on same-sex marriage. The supporters of gay marriage have vowed to place another initiative on the ballot to validate the gay marriage. There is no doubt that whatever the outcome of this ruling, this battle will continue to wage in California and throughout the United States for a long time to come as the courts and legislature and family law bar continue to struggle with these issues.

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