Entry tags:

diversity, gay rights, law, marriage equality, politics, proposition 8

You Have No Rights in California
Article I of the California Constitution is our state's equivalent of the Bill of Rights. It affirms that we all have equal and fundamental rights to life, liberty, and the pursuit of happiness. It then goes on to enumerate several other rights that the government grants and cannot impinge upon.

It has been the longstanding understanding -- upheld in numerous California Supreme Court rulings, legislative and gubernatorial actions, and voter initiatives -- that the California Constitution is an independent document and does not depend upon the Federal Constitution as the source of our rights. In fact, a proposal to include language that our rights are based on the U.S. Constitution was, literally, shouted down at the constitutional convention in which our current constitution was originally written.

Today, however, the California Supreme Court held that all rights -- including inalienable, fundamental rights -- exist at the whim of the voters. Any right you have here in California can now be voted away by a simple majority.

In the tortuous 136-page majority ruling in the cases now designated Strauss v. Horton, in which all the challenges to California's Proposition 8 were lumped, the California Supreme Court held that the revision to the state constitution that purports to take away the right of gays and lesbians to marry is constitutional. The court even acknowledges that this decision violates the right of gays and lesbians to equal protection:

Proposition 8 must be understood as creating a limited exception to the state equal protection clause as interpreted in the majority opinion in the Marriage Cases [which affirmed marriage equality in 2008]. (Majority opinion, page 42)

And yet, Prop 8 is just fine, according to the California Supreme Court.

For background, Proposition 8 was being challenged on state, not Federal constitutional grounds. California has two ways to change the state constitution: amendment and revision. An amendment is a minor change intended to make government function more effectively without changing the fundamental framework of governance and can be passed by a simple majority of voters through the initiative process. A revision makes a substantial change to how we are governed, and must first receive a 2/3 vote of the state legislature before going to the voters for approval. Proposition 8 was introduced through the amendment process. The primary challenge was that equal protection is the very basis of a constitutional democracy, and any change that would remove equal protection must therefore be a revision, not an amendment, or equal protection is completely meaningless.

The California Supreme Court has now decided, explicitly, that the only measures that qualify as revisions are those that affect the actual structure of government institutions -- e.g., if it were to change the legislature from bicameral to unicameral. This decision is wholly unprecedented, and actually mocked in Associate Justice Kathryn Mickle Werdegar's concurring opinion:

Noting that the California Constitution, unlike those of some other states, places no express subject-matter limitations on amendments, the majority writes that “[t]his court would radically depart from the well-established limits of the judicial function were it to engraft such a restriction onto the Constitution in the absence of an explicit constitutional provision limiting the amendment power.” (Maj. opn., ante, at p. 11.) Ironically, without the support of an explicit limiting provision, the majority in effect engrafts just such a subject-matter restriction onto the Constitution with its limiting definition of what constitutes a revision. Rejecting petitioners’ arguments that the voters may not use the amendment process to restrict individual liberties and must proceed by way of revision, the majority concludes that compliance with the revision procedures is mandatory only for changes affecting governmental organization and structure. (page 7)

Werdegar correctly asserts that a change that affects equal protection should be considered a revision instead of an amendment. (She then -- incorrectly, in my opinion, but defensibly -- asserts that Proposition 8 is not a revision because "For the state to meet its obligations under the equal protection clause will now be more difficult, but the obligation remains." (p. 10) -- i.e. "separate but equal" is challenging to keep equal, but it can be done.)

The majority opinion goes on to defend its position by holding that since several other ballot measures that attacked the rights of minorities were challenged on Federal equal protection grounds but nobody raised the state equal protection issue, obviously something that affects equal protection only on the state level is an amendment, not a revision. (Seriously!)

According to the majority opinion, the only reason I'm still married is because the authors of Proposition 8 neglected to unambiguously state that they intended Prop 8 to apply to marriages that have already been performed. In other words, nothing protects my rights except except a little procedural bungling on the other side.

As of today, Article I of the California Constitution is nothing more than a piece of paper, full of hollow promises, and -- contrary to 150 years of history and tradition -- entirely dependent on the Federal Constitution for our basic rights.

Personally, I fail to see how Associate Justice Carlos R. Moreno's concurring and dissenting opinion did not prevail as the logic of the court:

"Promising equal treatment to some is fundamentally different from promising equal treatment to all. Promising treatment that is almost equal is fundamentally different from ensuring truly equal treatment. Granting a disfavored minority only some of the rights enjoyed by the majority is fundamentally different from recognizing, as a constitutional imperative, that they must be granted all of those rights. " (pages 6-7)

"As discussed, there is no “underlying” principle more basic to our Constitution than that the equal protection clause protects the fundamental rights of minorities from the will of the majority. Accordingly, Proposition 8’s withdrawal of any of those rights from gays and lesbians cannot be accomplished through constitutional amendment." (page 11)

"The cases cited by the majority do indeed hold that a change to the Constitution that alters the structure or framework of government is a revision, but these cases do not, as the majority erroneously concludes, also stand for the inverse of this proposition: that a change to the Constitution that does not alter the structure or framework of the Constitution cannot constitute a revision and, thus, necessarily must be an amendment. The reason is simple. None of the cases cited by the majority considered this issue, because it was not raised." (page 12)

"It is apparent, moreover, that limiting the definition of revision only to changes in the structure of government necessarily leads to the untenable conclusion that even the most drastic and far-reaching changes to basic principles of our government do not constitute revisions so long as they do not alter the governmental framework." (page 20)

"Thus, under the majority’s view, it is not clear what sorts of state constitutional constraints limit the power of a majority of the electorate to discriminate against minorities." (page 21)

"The majority’s holding essentially strips the state Constitution of its independent vitality in protecting the fundamental rights of suspect classes." (page 21)

"I realize, of course, that the right of gays and lesbians to marry in this state has only lately been recognized. But that belated recognition does not make the protection of those rights less important. Rather, that the right has only recently been acknowledged reflects an age-old prejudice (Marriage Cases, supra, 43 Cal.4th at pp. 821-822, 846, 853) that makes the safeguarding of that right by the judiciary all the more critical." (page 23)

"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." (page 24)

Here Moreno's analysis is unquestionably and terrifyingly correct. None of us are protected by the California Constitution any more. Anyone's rights can be restricted or amended -- even if it is recognized as a fundamental, inalienable right -- by a simple majority of voters. We could, for example, vote to round up all undocumented immigrants and put them in concentration camps (there are plenty of Federal precedents that non-citizens do not enjoy protection under the Bill of Rights). We could vote to revoke free-speech rights of unions, churches, and political action committees (which enjoy greater freedom of speech in California than they do at the Federal level). We could eliminate parental choice in education, medical treatment, or religious indoctrination (which have all been held to be under the purview of state, not Federal law).

The reality is that the court balked because declaring Prop 8 a revision would have been unprecedented. However, declaring it an amendment is also unprecedented. By incorrectly declaring Prop 8 acceptable, the court has gutted a century and half of law and legal precedent that used to protect you and I from the tyranny of the majority.

California just became a much, much scarier place to live.

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The entirety of the California Supreme Court ruling, including all three filed opinions, can be downloaded from the California Supreme Court recent opinions page. You are looking for Strauss v. Horton, docket number S168047, posted May 26, 2009.