The key element for the challenge to Proposition 8 in California is an obscure distinction between an “amendment” and a “revision” of the state constitution. To be valid, Prop 8 must be a limited amendment rather than a broader revision. Much of the legal debate will focus on this aspect of California law.
What follows is a brief discourse on California precedent and is likely of interest only to lawyers. Gay lawyers.
Thus far, the writs presented to the California Supreme Court have appropriately distinguished People v. Frierson, 25 Cal.3d 142 (1979)
on the basis that it applies (potentially) to all Californians. Therefore, it is argued, the proposition at issue in Frierson acted as an amendment, rather than a revision, because it did not alter the Court’s procedures in a radical manner. In at least one writ, Frierson has been additionally distinguished by arguing that the language of the constitution itself compels the Court to take “public opinion” into account when weighing state action (the death penalty) against the standard of “cruel and unusual punishment.”
However, given the likelihood that the proponents of Proposition 8 will counter-argue that Prop 8 also applies to all Californians equally (that is, all men and all women are equally prohibited from marrying same-gender partners and therefore Proposition 8 does not target the sexual behavior or preferences of a suspect class) I believe that an additional distinction should be raised against Frierson.
Under Frierson, it was held that individuals who have been convicted of a capital crime in a court of law could have a specific, pre-existing constitutional right removed by amending the state constitution. In other words, although Frierson dealt generally with all Californians (who potentially could find themselves in this situation) it specifically dealt with a class of Californians who had forfeited a portion of their pre-existing rights by their own actions.
“Both Lance W. and Frierson concluded that no constitutional revision was involved because the isolated provisions at issue therein achieved no far reaching, fundamental changes in our governmental plan. But neither case involved a broad attack on state court authority to exercise independent judgment in construing a wide spectrum of important rights under the state Constitution....” Raven v. Deukmejian, 52 Cal. 3d 336 (1990)
Many state and federal laws restrict the pre-existing civil rights and privileges of individuals who are convicted of various crimes. These restrictions and revocations arise after the individual (not the class of individuals) has committed an action sufficient to void the pre-existing right. These include an individual’s voting rights, driver's license privileges, and eligibility for public housing, food stamps, or educational assistance. In contrast, Proposition 8 purports to strip a fundamental right from a narrowly defined class – one declared to be a protected, suspect class under the equal protection clause of the California constitution – despite the lack of any action by members of that class that could support the forfeiture.
Thus, while proponents of Prop 8 may assert that Frierson and Prop 8 both apply “equally” to all Californians, they cannot successfully assert that gay and lesbian citizens have committed any act that would trigger a similar forfeiture of their pre-existing civil rights. Therefore, Proposition 8 goes far beyond the boundaries set by Frierson as to when the Court must decide that a proposition amounts to an impermissible revision of the state constitution rather than a permissible amendment.
Ironically, were the Court to accept Proposition 8 as a “mere” amendment, the individuals who were the subject of Frierson’s proposition (i.e., death row inmates) would still retain the right of marriage – unless they happen to be homosexual. Under Proposition 8, a foundational right that has not been denied even to murderers and terrorists would be denied to a heretofore protected, “suspect class” of innocent, law-abiding citizens.
Proposition 8 also strips a suspect class of a fundamental right to contract. Again, no action on the part of the individuals who are members of the identified suspect class results in a forfeiture of this fundamental right – it is imposed by majority rule over the minority. This is such a profound alteration in the underlying principles of the state constitution that it also amounts to a revision.
“Marriage is thus something more than a civil contract subject to regulation by the state; it is a fundamental right of free men. There can be no prohibition of marriage except for an important social objective and by reasonable means.” Perez v Sharp, 32 Cal. 2d 711 (1948) Because “…the right to marry is the right to join in marriage with the person of one’s choice,…” (ibid.) arbitrary and capricious restrictions on the choices available to an individual amounts to an unconstitutional interference with the right of contract, a denial of equal protection to a suspect class and the introduction of express, irrational discrimination into the fabric of the constitution. As such, Proposition 8 crosses the line drawn to define a mere amendment and exposes itself as an attempted revision.
In Raven, the Court found that "such far reaching changes in the nature of our basic governmental plan … amount to a revision," that "involved a broad attack on state court authority to exercise independent judgment in construing a wide spectrum of important rights under the state Constitution." As in Perez, the intent and effect of Proposition 8 is far broader than its words imply. If allowed to take effect, Proposition 8 would not merely change the state definition of marriage but would strike down Supreme Court precedent, expand the limits of majority rule, strip an entire class of a its fundamental rights, eliminate rights of contract, and revise the very nature of constitutional equality.
Proposition 8 is an unconstitutional revision and must be struck down by the Court.