KAREN L. STRAUSS et al., Petitioners, v. MARK B. HORTON, as State Registrar of Vital Statistics, etc., et al., Respondents; DENNIS HOLLINGSWORTH et al., Interveners.
No. S168047
Supreme Court of California
May 26, 2009
46 Cal. 4th 364
[No. S168066. May 26, 2009.] ROBIN TYLER et al., Petitioners, v. THE STATE OF CALIFORNIA et al., Respondents; DENNIS HOLLINGSWORTH et al., Interveners. [No. S168078. May 26, 2009.] CITY AND COUNTY OF SAN FRANCISCO et al., Petitioners, v. MARK B. HORTON, as State Registrar of Vital Statistics, etc., et al., Respondents; DENNIS HOLLINGSWORTH et al., Interveners.
National Center for Lesbian Rights, Shannon P. Minter, Christopher F. Stoll, Melanie Rowen, Catherine Sakimura, Ilona M. Turner, Shin-Ming Wong; Munger, Tolles & Olson, Gregory D. Phillips, Jay M. Fujitani, David C. Dinielli, Michelle Friedland, Lika C. Miyake, Mark R. Conrad; Lambda Legal Defense and Education Fund, Jon W. Davidson, Jennifer C. Pizer, Tara Borelli; ACLU Foundation of Northern California, Alan L. Schlosser, James D. Esseks, Elizabeth O. Gill; ACLU Foundation of Southern California, Mark Rosenbaum, Clare Pastore, Lori Rifkin; ACLU Foundation of San Diego and Imperial Counties, David Blair-Loy; Law Office of David C. Codell, David C. Codell; Orrick, Herrington & Sutcliffe and Stephen V. Bomse for Petitioners Karen L. Strauss, Ruth Borenstein, Brad Jacklin, Dustin Hergert, Eileen Ma, Suyapa Portillo, Gerardo Marin, Jay Thomas, Sierra North, Celia Carter, Desmund Wu, James Tolen and Equality California.
Allred, Maroko & Goldberg, Gloria Allred, Michael Maroko and John S. West for Petitioners Robin Tyler, Diane Olson, Cheri Schroder and Coty Rafaely.
Dennis J. Herrera, City Attorney, Therese M. Stewart, Danny Chou, Kathleen S. Morris, Sherri Sokeland Kaiser, Vince Chhabria, Erin Bernstein, Tara M. Steeley and Mollie Lee, Deputy City Attorneys, for Petitioner City and County of San Francisco.
Howard Rice Nemerovski Canady Falk & Rabkin, Jerome B. Falk, Jr., Steven L. Mayer, Amy E. Margolin, Amy L. Bomse, Adam Polakoff and Michelle S. Ybarra for Petitioners City and County of San Francisco, Helen Zia, Lia Shigemura, Edward Swanson, Paul Herman, Zoe Dunning, Pam Grey, Marian Martino, Joanna Cusenza, Bradley Akin, Paul Hill, Emily Griffen, Sage Andersen, Suwanna Kerdkaew and Tina M. Yun.
Ann Miller Ravel, County Counsel, Tamara Lange, Lead Deputy County Counsel, and Juniper Lesnik for Petitioner County of Santa Clara.
Rockard J. Delgadillo, City Attorney, Richard H. Llewellyn, Jr., Chief Deputy City Attorney, David Michaelson, Chief Assistant City Attorney, and Michael J. Bostrom, Deputy City Attorney, for Petitioner City of Los Angeles.
Richard E. Winnie, County Counsel, Brian E. Washington, Assistant County Counsel, and Claude Kolm, Deputy County Counsel, for Petitioner County of Alameda.
Patrick K. Faulkner, County Counsel, and Sheila Shah Lichtblau, Deputy County Counsel, for Petitioner County of Marin.
Michael P. Murphy, County Counsel, Brenda B. Carlson, Chief Deputy County Counsel, and Glenn M. Levy, Deputy County Counsel, for Petitioner County of San Mateo.
Dana McRae, County Counsel, for Petitioner County of Santa Cruz.
Harvey E. Levine, City Attorney, and Nellie R. Ancel, Deputy City Attorney, for Petitioner City of Fremont.
Philip D. Kohn, City Attorney, for Petitioner City of Laguna Beach.
John Russo, City Attorney, and Barbara Parker, Chief Assistant City Attorney, for Petitioner City of Oakland.
Jan I. Goldsmith, City Attorney, and George F. Schaefer, Deputy City Attorney, for Petitioner City of San Diego.
John G. Barisone, City Attorney, for Petitioner City of Santa Cruz.
Marsha Jones Moutrie, City Attorney, and Joseph Lawrence, Assistant City Attorney, for Petitioner City of Santa Monica.
Lawrence W. McLaughlin, City Attorney, for Petitioner City of Sebastopol.
Proskauer Rose, Clifford S. Davidson, Lois D. Thompson and Albert C. Valencia for Anti-Defamation League, Asian Law Caucus, Americans United for Separation of Church and State, Japanese American Citizens League, Southern California Chinese Lawyers Association, Asian Pacific Islander Legal Outreach, Legal Aid Foundation of Los Angeles, Bet Tzedek Legal Services, Public Counsel, Orange County Asian Pacific Islander Community Alliance, National Senior Citizens Law Center, API Equality—LA, API Equality, API Parents and Friends of Lesbians and Gays (Los Angeles Chapter), Chicana Latina Foundation, American Jewish Committee, Barbara
Ronald Steiner, M. Katherine Baird Darmer, Richard Faulkner, Jenny Carey, Kurt Eggert, John Hall, Jayne Kacer, Steven Krone, Francine Lipman, Elizabeth L. MacDowell, Henry Noyes; Crowell & Moring, Steven P. Rice, Deborah E. Arbabi; Ashleigh E. Aitken, Casey Johnson, Michael Penn; Roman E. Darmer II; Rosanne M. Faul; Sallie Kim; Stephanie Mullen; Alexis Penn-Loya; Emily Samuelsen Quinlan; and Jeffrey L. Van Hoosear for Chapman Outlaw, Chapman Queer-Straight Alliance, Chapman Feminists and Chapman SPEAK (Students for Peaceful Empowerment, Action and Knowledge), Wylie Aitken, Deepa Badrinarayana, Rimvydas Baltaduonis, Marisa Cianciarulo, M. Katherine Baird Darmer, James Doti, Kurt Eggert, Kelly Graydon, Elizabeth MacDowell, Steven Krone, Francine Lipman, Lynn Mayer, Dale A. Merrill, Nancy Schultz, Suzanne Soohoo, Ronald Steiner, Sheri Maeda-Akau, Lisa Clark, Sandra L. Hague, Brian Scott Hamilton, Annie Knight, Mark Lawrence, AJ Place, Erin M. Pullin, Demisia Razo, Tara Riker, Christopher J. Roach, Gloria Rogers, Zara Ahmed, Sasha Anderson, Elliot Balsley, James E. Blalock, Claudia Brena, Anne L. Card, Tiffany Chang, Doug Clark, Kimberlee Cyphers, Alexa Hahn-Dunn, Linnea Esselstrom, Sara Gapasin, Ashley Ann Hanson, Cortney Johnson, Anais Keenon, Breanna Kenyon, Samantha Kohler, Timothy Lam, Craig Leets, Jr., David Nungary, Michelle Pascucci, Kitty Porter, Regina Rivera, Brian Rouse, Angela Wilhite, Preston Whitehurst, Emily Wilkinson, Lauren Jessica Wolf, Orange County Equality Coalition, James Albright, Thomas J. Peterson, Karla Bland, Laura Kanter, Lindsey Etheridge, John Dumas, James Nowick, Hung Y. Fan, Michael David Feldman, Mary Katherine Holman-Romero, Deborah Ann Romero-Holman, Jeffrey L. Van Hoosear, Gregory T. McCollum, Heather Ellis, Rosanne Faul, Sharon Nantell, Judy Gordon, Linda J. May, Dean Erwin Chemerinksy, James D. Herbert, Cecile Whiting, Dean Inada and Emily Quinlan as Amici Curiae on behalf of Petitioners.
Alice O‘Brien; Altshuler Berzon, James M. Finberg, Eve H. Cervantez and Barbara J. Chisholm for California Teachers Association as Amicus Curiae on behalf of Petitioners.
Joel Franklin; Michelle A. Welsh; Michael W. Stamp; and Amy M. Larson for The Constitutional Law Center of the Monterey College of Law as Amicus Curiae on behalf of Petitioners.
Prodigylaw.com and Dennis W. Chiu for Steven Mattos, Amor Santiago, Harry Martin and Paul J. Dorian as Amici Curiae on behalf of Petitioners.
City of West Hollywood Legal Services Division, Michael Jenkins and J. Stephen Lewis for City of Berkeley, City of Cloverdale, City of Davis, City of Emeryville, Town of Fairfax, County of Humboldt, City of Long Beach, City of Palm Springs, City of Sacramento, County of Sonoma and City of West Hollywood as Amici Curiae on behalf of Petitioners.
Bryan Cave, Jonathan Solish, Julie E. Patterson, James C. Pettis, Meghan C. Sherrill, Curt M. Dombek, Michael B. Zara, Marwa Hassoun and Vanessa A. Sunshine for Pacific Yearly Meeting of the Religious Society of Friends, Santa Monica Monthly Meeting of the Religious Sociеty of Friends, Orange Grove Monthly Meeting of the Religious Society of Friends and Claremont Monthly Meeting of the Religious Society of Friends as Amici Curiae on behalf of Petitioners.
Townsend and Townsend and Crew, Eugene Crew, Timothy R. Cahn, Nancy L. Tompkins, Holly Gaudreau, David J. Tsai and James D. Kiryakoza for Dr. Frank M. Alton, Immanuel Presbyterian Church, Netivot Shalom Synagogue, Reverend Dr. Jane Adams Spahr, Reverend Dr. John T. Norris, Reverend Dr. Glenda Hope, Rabbi David J. Cooper, Kehilla Community Synagogue, Reverend Laura Rose, Reverend Dr. Janet McCune Edwards, Reverend Kathryn M. Schreiber, Reverend Susan A. Meeter, Mira Vista United Church of Christ, Nancy McKay, Rabbi Menachem Creditor, Reverend Dr. Paul Tellstrom, Irvine United Congregational Church, Covenant Network of Presbyterians and More Light Presbyterians as Amici Curiae on behalf of Petitioners.
Gibson, Dunn & Crutcher, Frederick Brown, Ethan Dettmer, Sara Piepmeier, Rebecca Justice Lazarus, Enrique Monagas, Kaiponanea Matsumura, Douglas Champion, Heather Richardson, Lauren Eber and Lindsay Pennington for Current and Former California Legislators as Amici Curiae on behalf of Petitioners.
Eric Alan Isaacson, Alexandra S. Bernay, Samantha A. Smith, Stacey M. Kaplan; Eisenberg and Hancock, Jon B. Eisenberg; Winston & Strawn and
Dickstein Shapiro and Cassandra S. Franklin for Faith in America, Inc., as Amicus Curiae on behalf of Petitioners.
Troy M. Yoshino and Gonzalo C. Martinez for San Francisco La Raza Lawyers Association as Amicus Curiae on behalf of Petitioners.
Edward P. Howard; Chapman, Popik & White, Susan M. Popik, Merri A. Baldwin, Raquel A. Lacayo-Valle; Cooley Godward Kronish, Gordon C. Atkinson, Craig C. Daniel, Kyle C. Wong, Erin L. Dominguez and Daniel R. Redman for Professor Karl M. Manheim as Amicus Curiae on behalf of Petitioners.
Shay Aaron Gilmore; HoenningerLaw and Jo Hoenninger for Marriage Equality USA as Amicus Curiae on behalf of Petitioners.
James T. Linford as Amicus Curiae on behalf of Petitioners.
Perkins Coie, John S. Rossiter, Kirk A. Dublin, Jason A. Yurasek, Joren S. Bass, Geraldine M. Alexis, Farschad Farzan, Troy P. Sauro, Philip A. Leider, Gigi C. Hoang, Mamta Ahluwalia, David P. Chiappetta, Kaycie L. Wall and Liling Poh for Human Rights Watch, Human Rights Watch California Committee North and Human Rights Watch California Committee South as Amici Curiae on behalf of Petitioners.
Stephen Kent Ehat for Professors of Law as Amicus Curiae on behalf of Petitioners.
Law Offices of Stephan C. Volker, Stephan C. Volker and Joshua A. H. Harris for John Emmanuel Domine, Bradley Eric Aouizerat, Betsy Jo Levine and Lisa Lynn Brand as Amici Curiae on behalf of Petitioners.
Tobias Barrington Wolff; Bingham McCutchen, Raymond C. Marshall; Julie Su, Karin Wang; Eva Paterson, Kimberly Thomas Rapp; Nancy Ramirez, Cynthia Valenzuela Dixon; and Holly A. Thomas for Asian Pacific American Legal Center, California State Conference of the NAACP, Equal Justice Society, Mexican American Legal Defense and Educational Fund, NAACP
Robert Lott for Zakary Akin, Naomi Canchela, Terrence Fong, Jessica Hirschfelder, Adrienne Loo, Carolyn Lott, Robert Lott, Quang Nguyen, Agata Opalach, Jeff Pilisuk, Shalini Ramachandran, Vidhya Ramachandran, Joseph Robinson, Lee Schneider and Nathan Wilcox as Amici Curiae on behalf of Petitioners.
Lieff, Cabraser, Heimann & Bernstein, Elizabeth J. Cabraser, Kelly M. Dermody and Allison S. Elgart for Alameda County Bar Association, Bar Association of San Francisco, Los Angeles County Bar Association, Marin County Bar Association, Santa Clara County Bar Association, AIDS Legal Referral Panel, Asian American Bar Association of the Greater Bay Area, Asian American Justice Center, Asian Pacific American Bar Association of Los Angeles County, Bay Area Lawyers for Individual Freedom, California Employment Lawyers Association, California Rural Legal Assistance, Inc., Central California Legal Services, Inc., Charles Houston Bar Association, Consumer Attorneys of San Diego, East Bay La Raza Lawyers Association, Fred T. Korematsu Center for Law and Equality, Gay & Lesbian Advocates & Defenders, Impact Fund, Japanese American Bar Association of Greater Los Angeles, Korean American Bar Association of Northern California, Korean American Bar Association of Southern California, Latina Lawyers Bar Association, Law Foundation of Silicon Valley, Lawyers’ Club of San Francisco, Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, Legal Aid Society—Employment Law Center, Lesbian and Gay Lawyers Association of Los Angeles, Mexican American Bar Association, Minority Bar Coalition, National LGBT Bar Association, National Asian Pacific American Bar Association, National Lawyers Guild San Francisco Bay Area Chapter, Public Justice, Queen‘s Bench Bar Association of the San Francisco Bay Area, San Francisco Trial Lawyers Association, South Asian Bar Association of Northern California, South Asian Bar Association of San Diego, Tom Homann Law Association and Transgender Law Center as Amici Curiae on behalf of Petitioners.
Paul, Weiss, Rifkind, Wharton & Garrison, Walter Rieman and Roberta A. Kaplan for C. Edwin Baker, Robert A. Burt and Kermit Roosevelt III as Amici Curiae on behalf of Petitioners.
Brune & Richard, Laurie Edelstein, Randall T. Kim and Thomas J. Ringer for William N. Eskridge, Jr., and Bruce E. Cain as Amici Curiae on behalf of Petitioners.
Courtney G. Joslin and Michael S. Wald for Professors of Family Law Scott Altman, R. Richard Banks, Sarah Rigdon Bensinger, Grace Ganz Blumberg,
Steven Meiers as Amicus Curiae on behalf of Petitioners.
Hastings Civil Justice Clinic, Donna M. Ryu; Morrison & Foerster, Lawrence R. Katzin, Dorothy L. Fernandez, Scott M. Reiber, Bethany Lobo and Samuel J. Boone-Lutz for Constitutional and Civil Rights Law Professors as Amici Curiae on behalf of Petitioners.
Law Offices of Lawrence A. Organ, Lawrence A. Organ and Meghan A. Corman for The Civil Rights Forum as Amicus Curiae on behalf of Petitioners.
Paul & Hanley, J. Rae Lovko and Jason E. Hasley as Amici Curiae on behalf of Petitioners.
Leslie Ellen Shear; Katherine E. Stoner; Garrett C. Dailey; and Shane R. Ford for Association of Certified Family Law Specialists and American Academy of Matrimonial Lawyers, Northern California Chapter as Amici Curiae on behalf of Petitioners.
Pillsbury Winthrop Shaw Pittman, Kevin M. Fong and Alice K. M. Hayashi for League of Women Voters of California as Amicus Curiae on behalf of Petitioners.
Vincent H. Chieffo, Philippe A. Phaneuf, Dennis J. Rasor, Marc B. Koenigsberg, Alexandra Aquino-Fike; Jason H. Farber; Dewey & LeBoeuf, Jonathan A. Damon, Dean Hartsell, Todd L. Padnos, Benjamin M. Heuer, Ryan K. Tyndall and Mark M. Rabuano for San Francisco Chamber of Commerce, Google, Inc., H5 and Levi Strauss & Co., as Amici Curiae on behalf of Petitioners.
Greines, Martin, Stein & Richland, Irving Greines, Cynthia E. Tobisman and Jennifer C. Yang for Beverly Hills Bar Association, California Women Lawyers, Women Lawyers Association of Los Angeles and Women Lawyers of Sacramento as Amici Curiae on behalf of Petitioners.
Sullivan & Cromwell, Jason de Bretteville, Robert A. Sacks, Edward E. Johnson, Stacey R. Friedman, Maura E. Miller and David A. Castleman for Our Family Coalition and COLAGE as Amici Curiae on behalf of Petitioners.
Farella Braun + Martel, Grace K. Won, David K. Ismay, Brett R. Wheeler and Julie Wahlstrand for Children‘s Law Center of Los Angeles, Family Equality Council, Gay, Lesbian, Bisexual, and Transgender Therapists Association, Human Rights Campaign, Human Rights Campaign Foundation, Kids in Common, Legal Services for Children, National Black Justice Coalition, National Center for Youth Law, National Gay and Lesbian Task Force Foundation, Parents, Families and Friends of Lesbians and Gays, Inc., and San Francisco Court Appointed Special Advocates as Amici Curiae on behalf of Petitioners.
Paul, Hastings, Janofsky & Walker, Eve Coddon, Jeffrey S. Haber, James W. Gilliam, Sean D. Unger, Kimberley A. Donohue, Eleanor K. Mercado and Stephen B. Kinnaird for Billy DeFrank LGBT Community Center, L.A. Gay & Lesbian Center, Pacific Pride Foundation, Sacramento Gay & Lesbian Center, San Diego Lesbian, Gay, Bisexual, Transgender Community Center, San Francisco LGBT Community Center, Santa Cruz County Lesbian, Gay, Bisexual and Transgender Community Center and The Center Orange County as Amici Curiae on behalf of Petitioners.
Steptoe & Johnson, Rebecca Edelson, Robbin L. Itkin, Katherine C. Piper, Colleen O‘Brien and Matthew A. Williams for California National Organization for Women, National Organization for Women and Feminist Majority Foundation as Amici Curiae on behalf of Petitioners.
S. Michelle May for Sacramento Lawyers for Equality of Gays and Lesbians as Amicus Curiae on behalf of Petitioners.
Irell & Manella, Laura W. Brill, Moez M. Kaba, Richard M. Simon, Mark A. Kressel; Irma D. Herrera, Lisa J. Leebove; Vicky Barker; Rebecca Connolly, Sara Sturtevant, Emily Trexel; Nadia P. Bermudez; Julie F. Kay; Lisa Horowitz and Margaret B. Drew for Concerned with Gender Equality, Equal Rights Advocates, California Women‘s Law Center, Women Lawyers of Santa Cruz County, Lawyer‘s Club of San Diego, Legal Momentum and National Association of Women Lawyers as Amici Curiae on behalf of Petitioners.
Phalen G. Hurewitz and Mary K. Lindsay for Jewish Family Service of Los Angeles as Amicus Curiae on behalf of Petitioners.
Mark S. Shirilau as Amicus Curiae on behalf of Petitioners.
Weinberg, Roger & Rosenfeld, William A. Sokol, David A. Rosenfeld and John Plotz for California Federation of Labor, AFL-CIO, National Federation
Michael J. McDermott as Amicus Curiae on behalf of Petitioners.
Kenneth W. Starr; Law Offices of Andrew P. Pugno and Andrew P. Pugno for Interveners.
James Joseph Lynch, Jr., for Margie Reilly as Amicus Curiae on behalf of Interveners.
Sweeney & Greene, James F. Sweeney; The Becket Fund for Religious Liberty, Eric Rassbach, Luke Goodrich and Lori Windham for The California Catholic Conference, The Seventh-Day Adventist Church State Council, The United States Conference of Catholic Bishops and The Union of Orthodox Jewish Congregations of America as Amici Curiae on behalf of Interveners.
Angela C. Thompson and Patrick Gillen for Fidelis Center for Law and Policy as Amicus Curiae on behalf of Interveners.
Alliance Defense Fund, Timothy Chandler, Benjamin W. Bull, Brian W. Raum and James A. Campbell for Family Research Council as Amicus Curiae on behalf of Interveners.
Brad W. Dacus, Kevin T. Snider, Karen D. Milam and Matthew B. McReynolds for Pacific Justice Institute as Amicus Curiae on behalf of Interveners.
Lawrence J. Joseph for Eagle Forum Education & Legal Defense Fund as Amicus Curiae on behalf of Interveners.
Institute for Marriage and Public Policy, Joshua K. Baker; Marriage Law Foundation and William C. Duncan for National Organization for Marriage California as Amicus Curiae on behalf of Interveners.
Law Offices of Charles S. LiMandri, Charles S. LiMandri; Bopp, Coleson & Bostrom, James Bopp, Jr., Anita Y. Woudenberg and Sarah E. Troupis for Catholic Answers as Amicus Curiae on behalf of Interveners.
Chavez-Ochoa Law Offices, Brian R. Chavez-Ochoa; and Vincent P. McCarthy for American Center for Law & Justice and Three Members of the United States Congress as Amici Curiae on behalf of Interveners.
Liberty Counsel and Mary E. McAlister for Campaign for California Families as Amicus Curiae on behalf of Interveners.
T. M. Reverend Messiah for The Church of the Messiah as Amicus Curiae on behalf of Interveners.
Samuel Rodrigues as Amicus Curiae on behalf of Respondents.
Eric I. Gutierrez, Steven W. Fitschen and Douglas E. Myers for The National Legal Foundation as Amicus Curiae on behalf of Respondents.
D. Q. Mariette Do-Nguyen for Kingdom of Heaven as Amicus Curiae on behalf of Respondents.
OPINION
GEORGE, C. J.—For the third time in recent years, this court is called upon to address a question under California law relating to marriage and same-sex couples.
In Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055 (Lockyer), wе were faced with the question whether public officials of the City and County of San Francisco acted lawfully by issuing marriage licenses to same-sex couples in the absence of a judicial determination that the California statutes limiting marriage to a union between a man and a woman were unconstitutional. We concluded in Lockyer that the public officials had acted unlawfully in issuing licenses in the absence of such a judicial determination, but emphasized in our opinion that the substantive question of the constitutional validity of the marriage statutes was not before our court in that proceeding.
In In re Marriage Cases (2008) 43 Cal.4th 757 (hereafter the Marriage Cases), we confronted the substantive constitutional question that had not been addressed in Lockyer—namely, the constitutional validity, under the then-controlling provisions of the California Constitution, of the California marriage statutes limiting marriage to a union between a man and a woman. A majority of this court concluded in the Marriage Cases that same-sex couples, as well as opposite-sex couples, enjoy the protection of the constitutional right to marry embodied in the privacy and due process provisions of the California Constitution, and that by granting access to the designation of “marriage” to opposite-sex couples and denying such access to same-sex couples, the existing California marriage statutes impinged upon the privacy and due process rights of same-sex
Proposition 8, an initiative measure approved by a majority of voters at the November 4, 2008 election, added a new section—section 7.5—to article I of the California Constitution, providing: “Only marriage between a man and a woman is valid or recognized in California.” The measure took effect on November 5, 2008. In the present case, we address the question whether Proposition 8, under the governing provisions of the California Constitution, constitutes a permissible change to the California Constitution, and—if it does—we are faced with the further question of the effect, if any, of Proposition 8 upon the estimated 18,000 marriages of same-sex couples that were performed before that initiative measure was adopted.
In a sense, this trilogy of cases illustrates the variety of limitations that our constitutional system imposes upon each branch of government—the executive, the legislative, and the judicial.
In addressing the issues now presented in the third chapter of this narrative, it is important at the outset to emphasize a number of significant points. First, as explained in the Marriage Cases, supra, 43 Cal.4th at page 780, our task in the present proceeding is not to determine whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution. Regardless of our views as individuals on this question of policy, we recognize as judges and as a court our responsibility to confine our consideration to a determination of the constitutional validity and legal effect of the measure in question. It bears emphasis in this regard that our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values.
Second, it also is necessary to understand that the legal issues before us in this case are entirely distinct from those that were presented in either Lockyer or the Marriage Cases. Unlike the issues that were before us in those cases, the issues facing us here do not concern a public official‘s authority (or lack of authority) to refuse to comply with his or her ministerial duty to enforce a statute on the basis of the official‘s personal view that the statute is unconstitutional, or the validity (or invalidity) of a statutory provision limiting marriage to a union between a man and a woman under state constitutional provisions that do not expressly permit or prescribe such a limitation. Instead, the principal issue before us concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process so as to incorporate such a limitation as an explicit section of the state Constitution.
As is evident from the foregoing description, the process for amending our state Constitution is considerably less arduous and restrictive than the amendment process embodied in the federal Constitution, a difference dramatically demonstrated by the circumstance that only 27 amendments to the United States Constitution have been adopted since the federal Constitution was ratified in 1788, whereas more than 500 amendments to the California Constitution have been adopted since ratification of California‘s current Constitution in 1879. (See Council of State Governments, The Book of the States (2008 ed.) p. 10.)
At the same time, as numerous decisions of this court have explained, although the initiative process may be used to propose and adopt amendments to the California Constitution, under its governing provisions that process may not be used to revise the state Constitution. (See, e.g., McFadden v. Jordan (1948) 32 Cal.2d 330; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208; Raven v. Deukmejian (1990) 52 Cal.3d 336.) Petitioners’ principal argument rests on the claim that Proposition 8 should be viewed as a constitutional revision rather than as a constitutional amendment, and that this change in the state Constitution therefore could not lawfully be adopted through the initiative process.
As we discuss at length below, in determining whether Proposition 8 constitutes a constitutional amendment or, instead, a constitutional revision,
Furthermore, in addition to the historical background of the amendment/revision language that appears in the California Constitution itself, over the past three decades numerous decisions of this court have considered whether a variety of proposed changes to the California Constitution represented constitutional amendments or instead constitutional revisions. Those decisions establish both the analytical framework and the legal standard that govern our decision in this case, and further apply the governing standard to a wide array of measures that added new provisions and substantially altered existing provisions of the state Constitution. Those decisions explain that in resolving the amendment/revision question, a court carefully must assess (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.
In analyzing the constitutional challenges presently before us, we first explain that the provision added to the California Constitution by Proposition 8, when considered in light of the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757 (which preceded the adoption of Prop. 8), properly must be understood as having a considerably narrower scope and more limited effect than suggested by petitioners in the cases before us. Contrary to petitioners’ assertion, Proposition 8 does not entirely repeal or abrogate the
By clarifying this essential point, we by no means diminish or minimize the significance that the official designation of “marriage” holds for both the proponents and opponents of Proposition 8; indeed, the importance of the marriage designation was a vital factor in the majority opinion‘s ultimate holding in the Marriage Cases, supra, 43 Cal.4th 757, 845-846, 855. Nonetheless, it is crucial that we accurately identify the actual effect of Proposition 8 on same-sex couples’ state constitutional rights, as those rights existed prior to adoption of the proposition, in order to be able to assess properly the constitutional challenges to the proposition advanced in the present proceeding. We emphasize only that among the various constitutional protections recognized in the Marriage Cases as available to same-sex couples, it is only the designation of marriage—albeit significant—that has been removed by this initiative measure.
Taking into consideration the actual limited effect of Proposition 8 upon the preexisting state constitutional right of privacy and due process and upon the guarantee of equal protection of the laws, and after comparing this initiative measure to the many other constitutional changes that have been reviewed and evaluated in numerous prior decisions of this court, we conclude Proposition 8 constitutes a constitutional amendment rather than a constitutional revision. As a quantitative matter, petitioners concede that Proposition 8—which adds but a single, simple section to the Constitution—does not constitute a revision. 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. Contrary to petitioners’ claim in this regard, the measure does not transform or undermine the judicial function; this court will continue to exercise its traditional responsibility to faithfully enforce all of the provisions of the California
Petitioners contend, however, that even if Proposition 8 does not affect the governmental plan or framework established by the state Constitution, the measure nonetheless should be considered to be a revision because it conflicts with an assertedly fundamental constitutional principle that protects a minority group from having its constitutional rights diminished in any respect by majority vote. Petitioners, however, cannot point to any authority supporting their claim that under the California Constitution, a constitutional amendment—proposed and adopted by a majority of voters through the initiative process—cannot diminish in any respect the content of a state constitutional right as that right has been interpreted in a judicial decision. As we shall see, there have been many amendments to the California Constitution, adopted by the people through the initiative process in response to court decisions interpreting various provisions of the California Constitution, that have had just such an effect.
We agree with petitioners that the state constitutional right to equal protection of the laws unquestionably represents a long-standing and fundamental constitutional principle (a constitutional principle that, as we already have explained, has not generally been repealed or eliminated by Prop. 8). There are many other constitutional rights that have bеen amended in the past through the initiative process, however, that also are embodied in the state Constitution‘s Declaration of Rights and reflect equally long-standing and fundamental constitutional principles whose purpose is to protect often unpopular individuals and groups from overzealous or abusive treatment that at times may be condoned by a transient majority. Neither the language of the relevant constitutional provisions, nor our past cases, support the proposition that any of these rights is totally exempt from modification by a constitutional amendment adopted by a majority of the voters through the initiative process.
The constitutions of a number of other states contain express provisions precluding the use of the initiative power to amend portions or specified provisions of those states’ constitutions (see, e.g.,
Petitioners also claim that Proposition 8 violates the separation of powers doctrine embodied in the California Constitution. We conclude this claim similarly lacks merit. Contrary to petitioners’ assertion, Proposition 8 does not “readjudicate” the issue that was litigated and resolved in the Marriage Cases, supra, 43 Cal.4th 757. The initiative measure does not declare the state of the law as it existed under the California Constitution at the time of the Marriage Cases, but rather establishes a new substantive state constitutional rule that took effect upon the voters’ approval of Proposition 8. Because the California Constitution explicitly recognizes the right of the people to amend their state Constitution through the initiative process, the people, in exercising that authority, have not in any way impermissibly usurped a power allocated by the Constitution exclusively to the judiciary or some other entity or branch of government.
The Attorney General, in his briefing before this court, has advanced an alternative theory—not raised by petitioners in their initial petitions—under which he claims that even if Proposition 8 constitutes a constitutional amendment rather than a constitutional revision, that initiative measure nonetheless should be found invalid under the California Constitution on the ground that the “inalienable rights” embodied in
In addition, no authority supports the Attorney General‘s claim that a constitutional amendment adopted through the constitutionally prescribed procedure is invalid simply because the amendment affects a prior judicial
Accordingly, we conclude that each of the state constitutional challenges to Proposition 8 advanced by petitioners and the Attorney General lacks merit. Having been approved by a majority of the voters at the November 4, 2008 election, the initiative measure lawfully amends the California Constitution to include the new provision as
In a sense, petitioners’ and the Attorney General‘s complaint is that it is just too easy to amend the California Constitution through the initiative process.1 But it is not a proper function of this court to curtail that process; we are
Finally, we consider whether Proposition 8 affects the validity of the marriages of same-sex couples that were performed prior to the adoption of Proposition 8. Applying well-established legal principles pertinent to the question whether a constitutional provision should be interpreted to apply prospectively or retroactively, we conclude that the new section cannot properly be interpreted to apply retroactively. Accordingly, the marriages of same-sex couples performed prior to the effective date of Proposition 8 remain valid and must continue to be recognized in this state.
I
To place the constitutional change effected by Proposition 8 in context, we review the relevant historical circumstances that preceded the drafting, circulation, and adoption of this initiative measure.
We begin with a condensed summary of the relevant history of California‘s marriage statutes, a history described in greater detail by the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757. As explained in that opinion, “[f]rom the beginning of California statehood, the legal institution of civil marriage has been understood to refer to a relationship between a man and a woman.” (Id. at p. 792, fn. omitted.) In the mid-1970‘s, however, at least in part as a consequence of changes in the language of the California marriage
This marriage statute, as amended in 1977, remained in effect throughout the 1980‘s, 1990‘s, and 2000‘s, and continued to limit marriages that lawfully could be performed in California to marriages of opposite-sex couples. In the mid- and late-1990‘s and early 2000‘s, however, in response to a 1993 decision of the Hawaii Supreme Court that raised the possibility that the courts of that state might conclude that the Hawaii statute limiting marriage to opposite-sex couples violated the provisions of the Hawaii Constitution and that same-sex couples lawfully could marry in Hawaii (see Baehr v. Lewin (1993) 74 Haw. 530), the United States Congress and many states adopted so-called defense of marriage acts generally setting forth, in varying terms, the particular jurisdiction‘s policies of (1) limiting marriage to opposite-sex couples, and (2) recognizing only those marriages, entered into in another jurisdiction, that involved opposite-sex couples.
In California, supporters of this “defense of marriage” movement drafted and circulated an initiative petition that ultimately appeared on the March 7, 2000 primary election ballot as Proposition 22. Unlike comparable measures in some other states that took the form of state constitutional amendments, Proposition 22 proposed the adoption in California of a new statutory provision,
Shortly thereafter, several new actions were filed in superior court challenging the constitutionality of the California marriage statutes. Subsequently those actions, along with several others, were combined into a single coordination proceeding entitled In re Marriage Cases (JCCP No. 4365) and assigned to a superior court judge.
In August 2004, while the Marriage Cases coordination proceeding was pending in superior court, our court rendered its decision in Lockyer, supra, 33 Cal.4th 1055. We concluded that the local officials had exceeded their authority in issuing marriage licenses to same-sex couples in the absence of a judicial determination that the statutory provisions limiting marriage to opposite-sex couples were unconstitutional, and further held that the approximately 4,000 marriages of same-sex couples performed in San Francisco prior to our March 11, 2004 order were void and of no legal effect. At the same time, our opinion in Lockyer emphasized that the substantive question of the constitutionality of California‘s statutes limiting marriage to opposite-sex couples was not before this court in that case, and that we were expressing no view on that issue.
After we filed our decision in Lockyer, supra, 33 Cal.4th 1055, the superior court in the Marriage Cases coordination proceeding obtained briefing and conducted a hearing on the substantive question of the validity, under the state Constitution, of California‘s statutes limiting marriage to opposite-sex couples. After considering the parties’ positions, the superior court concluded that the California marriage statutes, in limiting marriage to opposite-sex couples and denying access to marriage to same-sex couples, violated the
On appeal, the Court of Appeal in a split decision reversed the superior court‘s ruling, concluding that the superior court had erred in finding the marriage statutes unconstitutional. One appellate justice dissented from that holding.
On petition of the parties in the Marriage Cases, we granted review, subsequently receiving extensive briefing by the parties and by a large number of amici curiae.
During the period in which the Marriage Cases proceeding was pending in this court but before we issued our decision, individuals circulated for signature an initiative petition proposing the adoption of the constitutional initiative measure at issue in the present case—that is, the initiative measure ultimately designated as Proposition 8.3 As set forth in the initiative petition, the measure proposed to add one new section—section 7.5—to article I of the California Constitution. The proposed new article I, section 7.5 read in full: “Only marriage between a man and a woman is valid or recognized in California.” As we have seen, these are the identical 14 words that were embodied in Proposition 22 and adopted as
On May 15, 2008, prior to the date the Secretary of State certified that Proposition 8 had obtained sufficient valid signatures to qualify for the November 4, 2008 election ballot, this court issued its decision in the Marriage Cases, supra, 43 Cal.4th 757. We shall discuss the majority opinion in the Marriage Cases in greater detail below in analyzing the scope and effect of Proposition 8 (see, post, at pp. 399-412), but at this juncture it is sufficient simply to point out that the majority concluded that (1) the constitutional “right to marry,” as embodied in the privacy and due process provisions of the California Constitution, is distinct from, and encompasses a much broader set of core elements than, the right to have one‘s official family relationship designated as “marriage,” (2) same-sex couples, as well as
Disagreeing with these conclusions, Justice Baxter, in a concurring and dissenting opinion joined by Justice Chin, argued that the acceptance of same-sex marriage should be determined through the political process, and not by this court. By relegating to itself the authority to alter and recast the traditional definition of marriage, these justices urged, the majority had violated the separation of powers among the three branches of government.
In specific response to the majority‘s analysis, Justices Baxter and Chin asserted that (1) it was unnecessary to decide whether same-sex couples had a fundamental state constitutional right to form legal unions with the substantive rights and benefits of marriage, because the Domestic Partner Rights and Responsibilities Act of 2003 (Domestic Partner Act), adopted by the Legislature, already grants to those couples all of these substantive rights the state can provide; (2) because marriage universally has been defined and understood as a formal relationship between a man and a woman, the California Constitution could not be construed to afford same-sex couples a fundamental “right to marry” that requires official use of the name “marriage” for same-sex legal unions; and (3) use of the common term “marriage” for same-sex and opposite-sex legal unions was not required by the state Constitution‘s equal protection clause.
On the last point, Justices Baxter and Chin reasoned that (1) same-sex and opposite-sex couples are not similarly situated in the context of statutes retaining the traditional definition of marriage; (2) sexual orientation is not a “suspect class” for state constitutional purposes; (3) state constitutional challenges to statutory distinctions on the basis of sexual orientation thus should be decided under the “rational basis” or “rational relationship” standard, not the “strict scrutiny” standard adopted by the majority; and
In a separate concurring and dissenting opinion, Justice Corrigan wrote that the equal protection clause of the California Constitution affords same-sex couples a right to form legal unions with all the substantive benefits and responsibilities of marriage—a right fully implemented by the Domestic Partner Act. She concluded that equal protection principles do not require same-sex legal unions to be officially identified by the name “marriage,” even though—in her view—Californians should allow them to be so designated. Like Justices Baxter and Chin, Justice Corrigan reasoned that, in light of the age-old understanding of marriage as a relationship limited to that between a man and a woman, same-sex and opposite-sex couples are not similarly situated for the purpose of recognizing the availability of the label “marriage” to same-sex legal unions. Hence, she concluded, an equal protection challenge to such a statutory distinction must be rejected at the threshold. Justice Corrigan joined Justices Baxter and Chin in arguing that this court lacked authority to alter and recast the traditional definition of marriage, and that such a profound social change instead should be accomplished through the political process.
After this court issued its decision in the Marriage Cases, several parties filed a petition for rehearing, requesting that this court either grant rehearing or modify the opinion “to stay the effectiveness of its decision until after the Secretary of State compiles the result of the November 4, 2008, election.” The rehearing petition noted that the proponents of Proposition 8 already had submitted the voter-signed initiative petition to county election officials for review and verification of the submitted signatures, and that the verification process was then under way. The rehearing petition maintained that “[i]f the voters approve the Marriage Initiative by a majority vote at the November 4, 2008 election, the language of the Marriage Initiative . . . will become part of the California Constitution” and would alter that Constitution “in a manner that will obviate the basis for the writ ordered in [the] Court‘s decision.” On June 2, 2008, the Secretary of State certified that Proposition 8 had obtained a sufficient number of valid signatures to appear on the November 4, 2008 general election ballot. On June 4, 2008, by majority vote, this court denied the petition for rehearing in the Marriage Cases; Justices Baxter, Chin, and Corrigan voted to grant rehearing. Our order indicated that the decision filed on May 15, 2008, would become final at 5:00 p.m. on June 16, 2008. The request to stay the effect of our decision was denied unanimously.
On June 20, 2008, shortly after the decision in the Marriage Cases became final, a petition was filed in this court, seeking the issuance of an original writ of mandate directing the Secretary of State not to include Proposition 8 on the election ballot to be voted upon at the November 4, 2008 election.
Accordingly, Proposition 8 remained on the November 4, 2008 election ballot. The Attorney General prepared a title and summary of the proposition; the Legislative Analyst prepared an analysis of the measure; ballot arguments in favor of and against the proposition were submitted; and a ballot pamphlet containing these materials was compiled by the Secretary of State and was sent to all voters prior to the November 4, 2008 election. At that election, Proposition 8 was approved by a majority (52.3 percent) of the voters casting votes on the proposition. (See Cal. Sect. of State, Votes for and Against November 4, 2008 State Ballot Measures <http://www.ss.ca.gov> [as of May 26, 2009].) Pursuant to
On November 5, 2008, the day following the election, three separate petitions for an original writ of mandate were filed in this court challenging the validity of Proposition 8. In Strauss v. Horton (S168047), petitioners—a number of same-sex couples who seek to marry notwithstanding the provisions of Proposition 8, along with Equality California (an organization whose members include numerous similarly situated same-sex couples throughout California)—seek a writ of mandate directing the relevant state officials to refrain from performing any act enforcing Proposition 8 and from instructing any other person or entity to enforce that measure, on the ground that Proposition 8 constitutes an invalid revision of the California Constitution. In Tyler v. State of California (S168066), petitioners—one same-sex couple who married in California prior to the adoption of Proposition 8 and one same-sex couple who want to marry notwithstanding Proposition 8—seek similar relief, asserting both that Proposition 8 constitutes an impermissible constitutional revision and that Proposition 8 violates the separation of powers doctrine. In City and County of San Francisco v. Horton (S168078), petitioners—numerous California municipal entities and several same-sex couples who married in California prior to the adoption of Proposition 8—also seek a writ of mandate directing state officials to refrain from implementing, enforcing, or applying Proposition 8, on the ground that this measure constitutes a constitutional revision, and further seek an order, in the event the court concludes that Proposition 8 is not unconstitutional, declaring that it operates prospectively only and does not invalidate existing marriages between same-sex couples. The petitions filed in the Strauss and Tyler cases also requested that we stay the operation of Proposition 8 pending our determination of these matters. On November 17, 2008, the official proponents of Proposition 8 filed a motion to intervene in all three cases.
The parties timely filed their briefs in this court,5 and we also have received numerous amici curiae briefs (63 in number, representing hundreds of institutions and individuals) on behalf of petitioners and of respondents.6 The cases were argued before this court on March 5, 2009, and after oral argument we filed an order consolidating the three cases for decision.
II
As already noted, the constitutional challenges to Proposition 8 that have been advanced in this proceeding require us to evaluate the changes in the California Constitution actually effected by the addition of the constitutional provision embodied in Proposition 8. In order to accurately identify those changes, it is necessary to review at some length the majority opinion in the
A
One of the questions presented in the Marriage Cases, supra, 43 Cal.4th 757, was the proper interpretation of the language embodied in
B
The main contention raised by the petitioners in the Marriage Cases, supra, 43 Cal.4th 757, was that both
Analyzing, in the Marriage Cases, supra, 43 Cal.4th 757, 812, “the nature and substance of the interests protected by the constitutional right to marry,” the majority opinion first expressly “put to the side . . . the question whether the substantive rights embodied within the constitutional right to marry
The majority opinion then began its analysis of the state constitutional right to marry by reviewing numerous California cases that had discussed and applied this right. (Marriage Cases, supra, 43 Cal.4th at pp. 813-815.) The opinion concluded, after an assessment of the significant societal and individual interests underlying this right as reflected in those decisions (id. at pp. 815-818), that “[b]ecause our cases make clear that the right to marry is an integral component of an individual‘s interest in personal autonomy protected by the privacy provision of
The majority opinion then went on to discuss some of the substantive aspects of this constitutional right. “One very important aspect of the substantive protection afforded by the California constitutional right to marry is . . . an individual‘s right to be free from undue governmental intrusion into (or interference with) integral features of this relationship—that is, the right of marital or familial privacy. [Citations.] The substantive protection embodied in the constitutional right to marry, however, goes beyond what is sometimes characterized as simply a ‘negative’ right insulating the couple‘s relationship from overreaching governmental intrusion or interference, and includes a ‘positive’ right to have the state take at least some affirmative action to acknowledge and support the family unit. [¶] Although the constitutional right to marry clearly does not obligate the state to afford specific tax or other governmental benefits on the basis of a couple‘s family relationship, the right to marry does obligate the state to take affirmative action to grant official, public recognition to the couple‘s relationship as a family [citations], as well as to protect the core elements of the family relationship from at least some types of improper interference by others. [Citation.] This constitutional right also has the additional affirmative substantive effect of providing assurance to each member of the relationship that the government will enforce the mutual obligations between the partners (and to their children) that are an important aspect of the commitments upon which the relationship rests.” (Marriage Cases, supra, 43 Cal.4th at pp. 819-820, fn. omitted.)
In summarizing this aspect of the decision, the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757, explained that “under this state‘s
After discussing the basic contours of the substantive elements encompassed within the state constitutional right to marry, the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757, went on to explain that although “as an historical matter in this state marriage always has been limited to a union between a man and a woman” (id. at p. 820), “[t]radition alone . . . generally has not been viewed as a sufficient justification for perpetuating, without examination, the restriction or denial of a fundamental constitutional right.” (Id. at pp. 820-821.) Observing that “in recent decades, there has been a fundamental and dramatic transformation in this state‘s understanding and legal treatment of gay individuals and gay couples” resulting in a general recognition “that gay individuals are entitled to the same legal rights and the same respect and dignity afforded all other individuals and are protected from discrimination on the basis of their sexual orientation” (id. at pp. 821-822), the majority concluded in the Marriage Cases that “just as this court recognized in Perez [v. Sharp (1948) 32 Cal.2d 711] that it was not constitutionally permissible to continue to treat racial or ethnic minorities as inferior [citation], and in Sail‘er Inn[, Inc. v. Kirby (1971) 5 Cal.3d 1] that it was not constitutionally acceptable to continue to treat women as less capable than and unequal to men [citation], we now similarly recognize that an individual‘s homosexual orientation is not a constitutionally legitimate basis for withholding or restricting the individual‘s legal rights.” (43 Cal.4th at pp. 822-823.) The opinion continued: “In light of this recognition, sections 1 and 7 of article I of the California Constitution cannot properly be interpreted to withhold from gay individuals the same basic civil right of personal autonomy and liberty (including the right to establish, with the person of one‘s choice, an officially recognized
Subsequently, after discussing and rejecting numerous arguments that had been presented as justification for limiting the constitutional right to marry to opposite-sex couples only (Marriage Cases, supra, 43 Cal.4th at pp. 823-829), the majority opinion reiterated in clear and emphatic terms its holding on this aspect of the case: “[W]e conclude that the right to marry, as embodied in
C
Having concluded that same-sex couples enjoy the same rights afforded by the state constitutional right to marry as opposite-sex couples, the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757, turned to the issue that had been deferred earlier in the opinion—namely, whether the substantive rights embodied in the constitutional right to marry include the right to have one‘s family relationship designated by the term “marriage.” The Attorney General argued that even if the state constitutional right to marry extends to same-sex couples, the marriage statutes did not violate the fundamental rights of same-sex couples by not making this designation available to them, ” ‘because all of the personal and dignitary interests that have traditionally informed the right to marry have been given to same-sex couples through the Domestic Partner Act.’ ” (Id. at p. 830.) The Attorney General asserted that ” ‘[t]he fundamental right to marry can no more be the basis for same-sex couples to compel the state to denominate their committed relationships “marriage” than it could be the basis for anyone to prevent the state legislature from changing the name of the marital institution itself to “civil unions.” ’ ” (Ibid.)
In responding to the Attorney General‘s argument, the majority opinion stated that “[w]e have no occasion in this case to determine whether the state constitutional right to marry necessarily affords all couples the constitutional right to require the state to designate their official family relationship a ‘marriage,’ ” because “[w]hether or not the name ‘marriage,’ in the abstract, is considered a core element of the state constitutional right to marry, one of the core elements of this fundamental right is the right of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other officially recognized family relationships.
Accordingly, although the majority opinion agreed with the Attorney General “that the provisions of the Domestic Partner Act afford same-sex couples most of the substantive attributes to which they are constitutionally entitled under the state constitutional right to marry” (Marriage Cases, supra, 43 Cal.4th at p. 831), the opinion concluded its discussion of the state constitutional right to marry by determining that “the сurrent statutory assignment of different designations to the official family relationship of opposite-sex couples and of same-sex couples properly must be viewed as potentially impinging upon the state constitutional right of same-sex couples to marry.” (Ibid.)
D
After describing the effect, upon the state constitutional right to marry, of the California statutes’ assignment of different designations to the family relationship of opposite-sex couples and the family relationship of same-sex couples, the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757, turned to the petitioners’ claim that the use of different designations denied same-sex couples equal protection of the laws, as guaranteed by the state constitutional equal protection clause embodied in
In addressing the standard-of-review issue, the majority opinion first rejected the petitioners’ claim that the difference in treatment between opposite-sex and same-sex couples properly should be viewed as discrimination on the basis of the suspect classification of sex or gender (Marriage Cases, supra, 43 Cal.4th 757, 833-838). The majority went on to conclude,
Having determined that strict scrutiny was the applicable standard of review, the majority opinion proceeded to apply the legal analysis dictated under that standard by considering whether the distinction between the designation of the family relationship of opposite-sex couples and that for same-sex couples served not only a constitutionally legitimate—but also a compelling—state interest, and, further, whether that difference in treatment not only was rationally related to but necessary to serve that interest. (Marriage Cases, supra, 43 Cal.4th at pp. 847-848.) After carefully reviewing the justifications for the strict scrutiny standard proffered by the state and other respondents in that case, the opinion concluded that the state interest in retaining the traditional definition of marriage does not constitute a state interest sufficiently compelling under the strict scrutiny standard to justify withholding that status from same-sex couples. The majority opinion consequently held that the provisions of
E
Finally, in determining the appropriate remedy in light of the constitutional conclusion it reached, the majority opinion held that the language of
F
Having carefully reviewed the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757, we assess the actual scope of Proposition 8 against the background of that opinion.
1
First, as we already have noted, in light of the interpretation of the language of Proposition 22 in the Marriage Cases, supra, 43 Cal.4th at pages 796-800, as well as the history of Proposition 8 itself, there is no question but that
2
Second, we consider the effect that Proposition 8 has on the “constitutional right to marry” as that right is discussed and analyzed in the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757, 809-831. As we have seen, the opinion explained that this right constitutes one aspect of the right of privacy embodied in
What effect does Proposition 8 have on this aspect of the state constitutional rights of privacy and due process as set forth in the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757? Although the new constitutional section added by Proposition 8—
The case of Bowens v. Superior Court (1991) 1 Cal.4th 36 [2 Cal.Rptr.2d 376, 820 P.2d 600] (Bowens) illustrates this point. In Bowens, our court considered the effect of a then-newly adopted constitutional provision—
Applying similar reasoning in the present context, we properly must view the adoption of Proposition 8 as carving out an exception to the preexisting scope of the privacy and due process clauses of the California Constitution as interpreted by the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757. The scope of the exception created by Proposition 8, however, necessarily is determined and limited by the specific language and scope of the new constitutional provision added by the ballot measure. Here the new constitutional provision (
This understanding of the limited scope of Proposition 8 is confirmed by the circumstance that the drafters of that measure drew the language of the initiative directly from the wording of
In addition to the language of Proposition 8 itself and the preexisting judicial interpretation of that language in the decision in Knight, supra, 128 Cal.App.4th 14, the ballot arguments submitted by the supporters of Proposition 8 establish that the purpose of that initiative measure was simply to restore the traditional definition of marriage as referring to a union between a man and a woman, and not to abrogate or eliminate the constitutional right of same-sex couples to establish an officially recognized family relationship (with comparable rights and responsibilities) bearing some other designation. (See Voter Information Guide, Gen. Elec. (Nov. 4, 2008) argument in favor of Prop. 8 and rebuttal to argument against Prop. 8, pp. 56-57 (November 2008 Voter Information Guide).)8
We recognize that the ballot argument in favor of Proposition 8 unquestionably indicates that the proponents of Proposition 8 very strongly disagreed with the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757, but a reading of this ballot argument in its entirety demonstrates that the proponents’ objection to that ruling was directed at the opinion‘s conclusions that the statutes limiting the designation of “marriage” to couples comprised
It is perhaps arguable that the language of the official short title and summary of Proposition 8 prepared by the Attorney General is more ambiguous than the proposition‘s text with regard to the measure‘s scope, because the short title assigned by the Attorney General stated simply that Proposition 8 “eliminates [the] right of same-sex couples to marry” (capitalization omitted) and the Attorney General‘s summary indicated that Proposition 8 “[c]hanges the California Constitution to eliminate the right of same-sex couples to marry in California.” (Nov. 2008 Voter Information Guide, supra, Official Title and Summary, p. 54.) In light of the language of Proposition 8 itself and the focus of the controversy surrounding the proposition, however, it is likely that voters who reviewed the ballot pamphlet understood the phrase “right to marry” in the Attorney General‘s title and summary to refer, in its common and most familiar meaning, to the right to enter into the official family relationship designated “marriage,” and thus correctly understood that Proposition 8 would eliminate only the right of same-sex couples to enter into the relationship bearing the designation of “marriage.” Nothing in the Attorney General‘s title or summary suggests that Proposition 8 would eliminate the constitutional right of same-sex couples to enter into an officially recognized family relationship bearing a designation other than “marriage.”10 Indeed, at oral argument, counsel for interveners acknowledged
Accordingly, although Proposition 8 eliminates the ability of same-sex couples to enter into an official relationship designated “marriage,” in all other respects those couples continue to possess, under the state constitutional privacy and due process clauses, “the core set of basic substantive legal rights and attributes traditionally associated with marriage,” including, “most fundamentally, the opportunity of an individual to establish with the person with whom the individual has chosen to share his or her life—an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.” (Marriage Cases, supra, 43 Cal.4th 757, 781.) Like opposite-sex couples, same-sex couples enjoy this protection not as a matter of legislative grace, but of constitutional right.
3
Third, Proposition 8 also has a similarly limited effect on the holdings of the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757, relating to the state constitutional equal protection clause. As we have seen, in the Marriage Cases the majority opinion held that sexual orientation constitutes a suspect classification for purposes of analysis under the state equal protection clause, and that statutes according differential treatment on the basis of sexual orientation are subject to the strict scrutiny standard of review. These general state equal protection principles established in the Marriage Cases are unaffected by the new section added to the California Constitution by Proposition 8. Of course, with respect to the specific subject of the designation of the word “marriage,” Proposition 8 does change the rule, set forth in the majority opinion in the Marriage Cases, that limiting access to this designation to opposite-sex couples constitutes an impermissible violation of the state equal protection clause. As explained above, by incorporating into the California Constitution a specific provision that expressly restricts the designation of “marriage” to the union of a man and a woman, 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. (See, e.g., Bowens, supra, 1 Cal.4th 36, 45; Izazaga, supra, 54 Cal.3d 356, 371-372.) This exception—although constituting the governing state constitutional rule with regard to the specific matter it
4
In sum, although Proposition 8 changes the state Constitution, as interpreted in the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757, to provide that restricting the family designation of “marriage” to opposite-sex couples only, and withholding that designation from same-sex couples, no longer violates the state Constitution, in all other respects same-sex couples retain the same substantive protections embodied in the state constitutional rights of privacy and due process as those accorded to opposite-sex couples and the same broad protections under the state equal protection clause that are set forth in the majority opinion in the Marriage Cases, including the general principle that sexual orientation constitutes a suspect classification and that statutes according differential treatment on the basis of sexual orientation are constitutionally permissible only if they satisfy the strict scrutiny standard of review.
III
Having analyzed and clarified the effect of Proposition 8 on the state constitutional rights of same-sex couples as determined in the Marriage Cases, supra, 43 Cal.4th 757, we now address the multiple challenges under the California Constitution that have been advanced against Proposition 8 in the present proceeding.11 We begin with the principal contention raised by petitioners in each of the cases before us—namely, that the constitutional change embodied in Proposition 8 constitutes a constitutional revision rather than a constitutional amendment, and, as such, may not be adopted through the initiative process.
A
The provisions of the California Constitution relating to amending and revising the Constitution currently are set forth principally in
As already noted, under these constitutional provisions an amendment to the California Constitution may be proposed to the electorate either by the required vote of the Legislature or by an initiative petition signed by the requisite number of voters. A revision to the California Constitution may be proposed either by the required vote of the Legislature or by a constitutional convention (proposed by the Legislature and approved by the voters). Either a proposed amendment or a proposed revision of the Constitution must be submitted to the voters, and becomes effective if approved by a majority of votes cast thereon at the election. Under these provisions, although the initiative power may be used to amend the California Constitution, it may not be used to revise the Constitution.
To understand the distinction between an amendment to, and a revision of, the Constitution, as those terms are used in the current provisions of the California Constitution, it is necessary to examine the origin and history of this distinction in our state Constitution as well as the numerous California decisions that have analyzed and applied the distinction over the course of many years. We proceed to review that history.
B
As explained by a number of 19th- and early 20th-century legal treatises, although the United States Constitution and a few of the earliest state constitutions provided for the proposal of constitutional changes either by a constitutional convention or by the jurisdiction‘s legislative body, most early state constitutions authorized the proposal of constitutional changes by only one of these means (that is, either by constitutional convention only or by the legislature only), and none of the early constitutions—including the United States Constitution—drew any distinction between the proposal of constitutional amendments and constitutional revisions. (See Dodd, The Revision and Amendment of State Constitutions (1910) pp. 118-120 (Dodd Treatise);
Beginning in the 1830‘s, however, a number of states whose constitutions employed a constitutional convention for the proposal of any constitutional change found that such a convention‘s “cumbersomeness for small changes” rendered it advisable “to adopt in addition or as a substitute the method of initiating proposed amendments in the legislature.” (Dodd Treatise, supra, at p. 120.) The treatises report that, over the next few decades, new constitutional provisions governing the procedure for changing state constitutions—adopted either in newly admitted states or through the modification of already existing state constitutions—demonstrated “a growing conviction that the legislative mode has advantages which make its more general adoption seem desirable, and yet that it alone is not adequate to the exigencies of the times, but needs to have coupled with it a provision for a Convention when the people should deem it necessary or expedient to make a general revision of the Constitution.” (Jameson Treatise, supra, § 531, p. 552, italics added; see also Dodd Treatise, supra, at p. 120.) Many of these state constitutional provisions—like the provision adopted as part of the original California Constitution—authorized the state legislative body to propose any constitutional amendment but provided that a constitutional revision could be proposed only by a constitutional convention. (See Jameson Treatise, § 574c, pp. 610-612.)
In 1849, in anticipation of California‘s application to the United States Congress for admission as a new state, a constitutional convention was held in California to draft a constitution to govern the state. (See generally Grodin et al., The California State Constitution: A Reference Guide (1993) pp. 2-3 (hereafter California Constitution Reference Guide); Burns, Taming the Elephant: An Introduction to California‘s Statehood and Constitutional Era (2003) Cal. History, vol. 81, No. 3/4, pp. 6–7.) In drafting the first California Constitution, the convention delegates frequently drew upon constitutional provisions contained in other state constitutions (see Browne, Rep. of the Debates in Convention of Cal. on Formation of State Const. (1850) passim (hereafter 1849 Debates)), and this was the case with respect to the constitutional provisions relating to the “Mode of Amending and Revising the Constitution,” adopted as article X of the 1849 Constitution. (1849 Debates, at pp. 354-361.) Article X of that Constitution, modeled on similar provisions in New York‘s then-current constitution (1849 Debates, at pp. 355, 359), contained two sections. Section 1 of article X of the 1849 Constitution provided in relevant part that “[a]ny amendment or amendments to this Constitution, may be proposed in the Senate or Assembly...” (italics added),
Accordingly, under the 1849 Constitution, “any amendment or amendments” to the Constitution could be proposed by the Legislature and submitted directly to the people, but if the Legislature thought it necessary “to revise and change [the] entire Constitution,” a constitutional convention had to be convened to propose such a revision. These provisions represent the origin of the amendment/revision distinction under the California Constitution, and reveal not only the narrow range of the type of proposed constitutional change that reasonably could be viewed as a constitutional revision (a proposal “to revise and change this entire Constitution“), but also that the amendment/revision distinction long predates the appearance of the initiative process in California.
During the 30 years in which the 1849 Constitution was effect, no published California decision addressed the amendment/revision dichotomy, apparently because no claim was raised that any constitutional amendment proposed by the Legislature in those years constituted a revision. In 1877, in response to significant economic and demographic changes in California (see Cal. Constitution Reference Guide, supra, at pp. 9-10), the Legislature submitted to the voters the question of calling a state constitutional convention to revise the 1849 Constitution, and a majority of voters approved the measure. As a result, a constitutional convention was convened, beginning its deliberations in September 1878 and concluding its work in March 1879. The resulting proposed revised Constitution was put before the voters in May 1879 and was ratified at that election. (See Lee, The Revision of California‘s Constitution (Apr. 1991) Cal. Policy Seminar Brief, p. 2.)
The provisions relating to the procedure for amending and revising the Constitution were set forth in article XVIII of the 1879 Constitution, and those provisions retained the same basic structure as the provisions of article X of the 1849 Constitution with respect to the amendment/revision dichotomy. As adopted in 1879, section 1 of former article XVIII provided that “[a]ny amendment or amendments to this Constitution may be proposed in the Senate or Assembly” (italics added), and further provided for direct submission of such proposed amendment or amendments to a vote of the electors if approved by the requisite vote of each legislative chamber.15 Section 2 of article XVIII provided that “[w]henever two-thirds of the members elected to each branch of the Legislature shall deem it necessary to revise this Constitution, they shall recommend to the electors to vote at the next general election for or against a Convention for that purpose” (italics added), and that if a majority of voters approved the calling of a constitutional convention, the Legislature should call such a convention at its next session. Section 2 further provided that “the Constitution that may be agreed upon by such Convention shall be submitted to the people for their
Accordingly, under the 1879 Constitution as originally adopted, as under the 1849 Constitution, a revision of the Constitution could be proposed only by a constitutional convention and contemplated a potentially broad reworking of the constitutional structure and provisions, whereas “any amendment or amendments” to the Constitution could be proposed, and submitted directly to a vote of the people, by the Legislature.
D
It was under the 1879 Constitution that the distinction drawn in our state Constitution between a constitutional amendment and a constitutional revision first elicited discussion in a decision of this court. In Livermore v. Waite (1894) 102 Cal. 113 [36 P. 424] (Livermore), an action was brought to restrain the Secretary of State from certifying placement on the ballot of a proposed amendment to the California Constitution that had been adopted by
The decision of this court in Livermore, rendered 115 years ago, made it plain that the measure in question in that case—proposing a change in the location of the state capital from one city to another—very clearly constituted a constitutional amendment rather than a constitutional revision, but in the course of its opinion the court set forth a general description of the amendment/revision dichotomy that, as we shall see, is relied upon in the present case by petitioners and by the concurring opinion of Justice Werdegar (post, at pp. 480-481) and the concurring and dissenting opinion of Justice Moreno (post, at pp. 487-488). In light of that reliance, we shall set forth the relevant passage at some length.
In describing the then-existing provisions governing changes to the California Constitution, the court in Livermore, supra, 102 Cal. 113, stated: “Article XVIII of the constitution provides two methods by which changes may be effected in that instrument, one by a convention of delegates chosen by the people for the express purpose of revising the entire instrument, and the other through the adoption by the people of propositions for specific amendments that have been previously submitted to it by two-thirds of the members of each branch of the legislature. . . . The legislature is not authorized to assume the function of a constitutional convention, and propose for adoption by the people a revision of the entire constitution under the form of an amendment. . . . The very term ‘constitution’ implies an instrument of a permanent and abiding nature, and the provisions contained therein for its revision indicate the will of the people that the underlying principles upon which it rests, as well as the substantial entirety of the instrument, shall be of a like permanent and abiding nature. On the other hand, the significance of the term ‘amendment’ implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed. Experience may disclose defects in some of its details, or in the practical application of some of the principles or limitations which it contains. The changed condition of affairs in different parts of the state, or the changes of society or time, may demand the removal of some of these limitations, or an extended application of its principles. So, too, some popular wave of sociological reform, like the abolition of the death penalty for crime, or a prohibition against the manufacture or sale of intoxicating liquors, may induce a legislature to submit for enactment, in the permanent form of a constitutional prohibition, a rule which it has the power itself to enact as a law, but which might be of only temporary effect.” (Id. at pp. 117-119.)
E
After the Livermore decision, the next relevant event in the historical background we are reviewing came in 1911, with the adoption of the initiative power as part of the California Constitution. As we have observed in past cases, “The amendment of the California Constitution in 1911 to provide for the initiative and referendum signifies one of the outstanding achievements of the progressive movement of the early 1900‘s.” (Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 591 [135 Cal.Rptr. 41, 557 P.2d 473] (Associated Home Builders).) The progressive movement, both in California and in other states, grew out of a widespread belief that “moneyed special interest groups controlled government, and that the people had no ability to break this control.” (Waters, Initiative and Referendum Almanac (2003) p. 3; see generally Starr, Inventing the Dream: California Through the Progressive Era (1985) pp. 199-282; Olin, California‘s Prodigal Sons: Hiram Johnson and the Progressives, 1911–1917 (1968) pp. 1-56; Mowry, The California Progressives (1951) pp. 1-104.) In California, a principal target of the movement‘s ire was the Southern Pacific Railroad, which the movement‘s supporters believed not only controlled local public officials and state legislators but also had inordinate influence on the state‘s judges, who—in the view of the progressive movement—at times improperly had interpreted the law in a manner unduly favorable to the
As we explained in Associated Home Builders, supra, 18 Cal.3d 582, 591: “Drafted in light of the theory that all power of government ultimately resides in the people, the [1911] amendment speaks of the initiative and referendum, not as a right granted the people, but as a power reserved by them.” The 1911 measure, which amended the provisions of article IV, section 1, of the Constitution, provided in relevant part: “The legislative power of this state shall be vested in a senate and assembly which shall be designated ‘The legislature of the State of California,’ but the people reserve to themselves the power to propose laws and amendments to the constitution, and to adopt or reject the same, at the polls independent of the legislature. . . . [¶] The first power reserved to the people shall be known as the initiative. Upon the presentation to the secretary of state of a petition . . . signed by [the requisite number of] qualified electors, . . . proposing a law or amendment to the constitution, . . . the secretary of state shall submit the said proposed law or amendment to the constitution to the electors at the next succeeding general election . . . . [¶] . . . [¶] Any act, law or amendment to the constitution submitted to the people by . . . initiative . . . petition and approved by a majority of votes cast thereon, at any election, shall take effect five days after the date of the official declaration of the vote by the secretary of state.” (Italics added.) By virtue of this provision, an amendment to the California Constitution could be proposed either by legislative action or by the people directly through the initiative process.
F
In the years following the adoption of the initiative power in 1911, numerous constitutional amendments were proposed through the initiative process, and a substantial number of significant changes to the California Constitution were adopted by that means. (See Key & Crouch, The Initiative and Referendum in California (1938) pp. 459-471 [describing constitutional
In McFadden, supra, 32 Cal.2d 330, the petitioners sought an order prohibiting the Secretary of State from submitting to the voters a proposed initiative amendment to the California Constitution that had garnered the signatures of a sufficient number of qualified electors. The proposed amendment at issue in that case was referred to popularly as the “ham and eggs” initiative, because of the varied subjects it encompassed. In describing the proposition, the court in McFadden observed: “The measure proposes to add to our present Constitution ‘a new Article to be numbered Article XXXII thereof and to consist of 12 separate sections (actually in the nature of separate articles) divided into some 208 subsections (actually in the nature of sections) set forth in more than 21,000 words. The Constitution as now cast, with the amendments added since its original adoption as revised in 1879, contains 25 articles divided into some 347 sections expressed in approximately 55,000 words.” (32 Cal.2d at p. 334.)
The opinion then went on to summarize the content of each of the measure‘s sections, a summary that runs a full six pages in the decision in the Official Reports. (McFadden, supra, 32 Cal.2d at pp. 334-340.) A simple listing of the titles and a truncated summary of each of the measure‘s sections provides a flavor of the varied nature and wide breadth of the proposal. Section I, entitled “Principles and Policy,” stated that it may be cited as “the ‘California Bill of Rights’ ” and contained “declarations of various ethical, economic and governmental concepts and philosophies.” (32 Cal.2d at p. 334.) Section II, entitled “The California Pension Commission,” named the first five commissioners to serve on the commission and established their salaries. Section III, entitled “Retirement Pension Payments,” specified pension benefits to be paid by the government to various categories of individuals. Section IV, entitled “Wagering and Gaming,” contained 50 subsections related to that subject. Section V, entitled “Taxes,” contained 16 subsections related to various types of taxes and tax exemptions. Section VI, entitled “Oleomargarine,” provided that oleomargarine could not be sold in California without a license and without payment of a tax or fee. Section VII, entitled “Pertaining to the Healing Arts,” contained 53 sections, creating a “California State Board of Naturopathic Examiners” to supplement the existing medical boards and granting to that board—whose first members were specifically named—extensive authority. Section VIII, entitled “Civic Centers,” declared there to be a civic center at every public school building within the state, and granted every nonprofit and nonsectarian organization in the state formed for
From this description of the measure at issue in McFadden, supra, 32 Cal.2d 330, it is apparent that were such an initiative measure to be proposed today, the proposal undoubtedly would be challenged and held invalid under the “single-subject rule” now embodied in
In addressing this question, the court in McFadden observed that “[t]he initiative power reserved by the people by amendment to the Constitution in 1911 (art. IV, § 1) applies only to the proposing and the adopting or rejecting of ‘laws and amendments to the Constitution’ and does not purport to extend to a constitutional revision.” (McFadden, supra, 32 Cal.2d at p. 333.) Noting that the 1911 initiative amendment was drafted and adopted long after the decision in Livermore, supra, 102 Cal. 113, had discussed the distinction between a constitutional amendment and a constitutional revision and had explained that a constitutional revision could be proposed only by a constitutional convention, the court in McFadden concluded: “It is thus clear that a
After summarizing (as referred to above) the varied and extensive contents of the measure at issue in that case, the court in McFadden stated: “Our review of the subjects covered by the measure and of its effect on the totality of our plan of government as now constituted does not purport to be exhaustive. It is amply sufficient, however, to demonstrate the wide and diverse range of subject matters proposed to be voted upon, and the revisional effect which it would necessarily have on our basic plan of government. The proposal is offered as a single amendment but it obviously is multifarious . . . . There is in the measure itself no attempt to enumerate the various and many articles and sections of our present Constitution which would be affected, altered, replaced, or repealed. It purports only to add one new article but its framers found it necessary to include the omnibus provision (§ XII, subdiv. (7)) that “If any section, subsection, sentence, clause or phrase of the constitution is in conflict with any of the provisions of this article, such section, subsection, sentence, clause or phrase is to the extent of such conflict hereby repealed.“” (McFadden, supra, 32 Cal.2d at pp. 345-346, first italics added.)
In support of the validity of the measure, its proponents argued that only a measure affecting all of the sections of the current Constitution should be considered a revision, and that any measure affecting fewer than all such provisions should be considered an amendment. The court in McFadden responded: “We cannot accept such an arbitrary and strained minimization of difference between amend and revise. The differentiation required is not merely between two words; more accurately it is between two procedures and between their respective fields of application. . . . [The proponents“] contention—that any change less than a total one is but amendatory—would reduce to the rubble of absurdity the bulwark so carefully erected and preserved. Each situation involving the question of amendment, as contrasted with revision, of the Constitution must, we think, be resolved upon its own facts. A case might, conceivably, be presented where the question would be close and where there would be occasion to undertake to define with nicety the line of demarcation; but we have no such case or occasion here.” (McFadden, supra, 32 Cal.2d at pp. 347-348, last italics added.)
G
In 1956, the California Legislature created a Citizens Legislative Advisory Commission to study and evaluate the organization and procedures of the Legislature, and a few years later that commission was requested to study and to provide a recommendation with regard to problems and methods of constitutional revision. (See Lee, The Revision of California“s Constitution, supra, Cal. Policy Seminar Brief, pp. 3-4.) In March 1961, the commission presented its report and recommendations on this subject to the Legislature, pointing out that the California Constitution had been amended more frequently (323 times at that point) than any other state constitution except that of Louisiana, that many of the amendments were statutory in nature and required frequent amendment, and that other states increasingly and successfully had used means other than a constitutional convention—such as a legislatively appointed constitutional commission—to formulate a constitutional revision to be submitted to the voters. The commission“s report ultimately recommended that former article XVIII of the California Constitution “be amended to permit the Legislature to submit to the people a revised Constitution or a revision of any part thereof.” (Citizens Legis. Advisory Com., Rep. and Recommendation on Const. Revision (Mar. 9, 1961) p. 9, 2 Appen. to Assem. J. (1961 Reg. Sess.).)
In response to this recommendation, the Legislature approved a constitutional amendment to be submitted to the voters, which proposed to amend section 1 of former article XVIII to permit the Legislature to submit to the electorate not only constitutional amendments but also revisions of all or part of the Constitution. This proposed amendment was submitted to the voters as Proposition 7 at the November 1962 general election.
The ballot pamphlet sent to the voters in advance of the election contained an analysis of the measure prepared by the Legislative Counsel, as well as an argument in favor of the proposition. (No argument against the measure was submitted.) The Legislative Counsel“s analysis described the distinction between constitutional amendments and constitutional revisions in the following terms: “Under existing provisions the Legislature can only propose “amendments,” that is measures which propose changes specific and limited in nature. “Revisions,” i.e., proposals which involve broad changes in all or a
As a consequence, since 1962 the
H
The latest change to the provisions of the
I
Although there have been no substantive changes in the relevant state constitutional provisions since 1970, during the course of the past four decades this court has had occasion to decide a significant number of cases in which an initiative measure, adding or altering a provision or provisions of the
1
Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, supra, 22 Cal.3d 208 (Amador), decided in 1978, was the first case after the 1948 decision in McFadden, supra, 32 Cal.2d 330, presenting this court with an amendment/revision claim. In Amador, the petitioners raised a multi-pronged constitutional challenge to Proposition 13, an initiative measure approved by the voters at the June 1978 election that added a new article (art. XIII A) to the
After relating the pertinent provisions of
In applying this analysis to Proposition 13, the court in Amador, supra, 22 Cal.3d 208, first considered the quantitative nature of the changes effected by the measure. Although the petitioners in that case claimed that eight separate articles and 37 sections of the preexisting
The court then turned to the qualitative effects of Proposition 13. The petitioners argued that Proposition 13 would have far-reaching qualitative effects upon the state“s basic governmental plan in two respects: “(1) the loss of “home rule” and (2) the conversion of our governmental framework from “republican” to “democratic” form.” (Amador, supra, 22 Cal.3d at p. 224.) The decision in Amador analyzed each of these asserted effects and found that the measure would not be as disruptive as suggested by the petitioners. With respect to home rule, the court in Amador rejected the contention that simply because the Legislature was given the authority to allocate the limited property tax revenue authorized by the measure, Proposition 13 necessarily would lead to a system in which the Legislature directed and controlled all local budgetary decisions, programs, and service priorities. The court pointed out that legislation enacted after the passage of the measure belied that claim, and also noted that Proposition 13 left local entities free to raise additional revenue through special taxes approved by a two-thirds vote of the electors. (22 Cal.3d at pp. 225-227.) With respect to the charge that the measure would result in a change “from a “republican” form of government (i.e., lawmaking by elected representatives) to a “democratic” governmental plan (i.e., lawmaking directly by the people)” because Proposition 13 required that any special tax that a local entity wished to impose be approved by a two-thirds vote of the electors (22 Cal.3d at p. 227), the court in Amador concluded that the proposition was “more modest both in concept and effect [than the petitioners suggested] and [did] not change our basic governmental plan.” We explained that the measure affected only the limited area of taxation, leaving undiminished the authority of representative elected bodies to enact appropriate laws and regulations in all other areas. (Id. at pp. 227-228.)
Although the court acknowledged that the changes wrought by Proposition 13 were very significant, it nonetheless concluded that the measure constituted an amendment rather than a revision. The court stated in this regard: “[I]t is apparent that article XIII A will result in various substantial changes in the operation of the former system of taxation. Yet, unlike the alterations effected by the McFadden initiative discussed above, the article XIII A changes operate functionally within a relatively narrow range to accomplish a new system of taxation which may provide substantial tax relief for our
2
The year following Amador, supra, 22 Cal.3d 208, our court confronted the amendment/revision question in the context of an initiative measure that amended the
In the decision in Anderson, supra, 6 Cal.3d 628—issued on February 17, 1972—this court found California“s then-existing death penalty statute unconstitutional on the ground that the death penalty itself was “unnecessary to any legitimate goal of the state and . . . incompatible with the dignity of man and the judicial process” (6 Cal.3d at p. 656) and thus violated the cruel or unusual punishment clause of the
In Frierson, supra, 25 Cal.3d 142, the defendant claimed the 1972 initiative measure constituted a revision rather than an amendment of the Constitution, arguing that
3
Three years after Frierson, supra, 25 Cal.3d 142, in Brosnahan v. Brown (1982) 32 Cal.3d 236 [186 Cal.Rptr. 30, 651 P.2d 274] (Brosnahan), we addressed a multipronged constitutional challenge to a lengthy and diverse criminal justice initiative measure that amended various penal statutes and also made a number of significant changes to the California constitutional provisions relating to criminal proceedings. That measure, like the one currently before us, was commonly referred to by its ballot designation as
The main challenge to the 1982 Proposition 8 was the claim that the initiative measure violated the single-subject rule (see Brosnahan, supra, 32 Cal.3d at pp. 245-253), but the petitioners in Brosnahan additionally contended that the proposition was “such a “drastic and far-reaching” measure as to constitute a “revision” of the state Constitution rather than a mere amendment thereof.” (32 Cal.3d at p. 260.)
In evaluating the latter claim, the court in Brosnahan, supra, 32 Cal.3d 236, assessed both the quantitative and qualitative effects of the initiative measure. The court initially found that the proposition had only “a limited quantitative effect” (id. at p. 260) on the preexisting constitutional provisions, repealing one section of
With respect to the qualitative effect of the measure, the court in Brosnahan stated that “while Proposition 8 does accomplish substantial changes in our criminal justice system, even in combination these changes fall considerably short of constituting “such far reaching changes in the nature of our basic governmental plan as to amount to a revision . . . .“” (Brosnahan, supra, 32 Cal.3d at p. 260, italics added by Brosnahan.) In response to the petitioners” contention that the measure“s limitation upon plea negotiation and its creation of a right to safe schools likely would have the effect of interfering with the judiciary“s ability to perform its constitutional duty to decide cases and the further effect of abridging the constitutional right to public education, the court in Brosnahan noted that the “petitioners” forecast of judicial and educational chaos is exaggerated and wholly conjectural, based primarily upon essentially unpredictable fiscal or budgetary constraints” (id. at p. 261). The court pointed out additionally that our decision in Amador had “discounted similar dire predictions” and had rejected a similar claim, because ” “nothing on the face of the [initiative measure] ” compelled
Accordingly, finding that “nothing contained in [the 1982] Proposition 8 necessarily or inevitably will alter the basic governmental framework set forth in our Constitution” (Brosnahan, supra, 32 Cal.3d at p. 261, italics added), the court in Brosnahan concluded that the measure constituted an amendment to, and not a revision of, the California Constitution.
4
A few years after the decision in Brosnahan, supra, 32 Cal.3d 236, our court in In re Lance W. (1985) 37 Cal.3d 873 [210 Cal.Rptr. 631, 694 P.2d 744] (Lance W.) addressed a number of issues relating to one of the constitutional provisions that had been added by the same initiative measure at issue in Brosnahan—
The initial issue addressed in Lance W. was whether section 28(d) should be interpreted as having altered the preexisting state constitutional rule excluding evidence obtained in violation of the California constitutional provision prohibiting unlawful searches and seizures, thus rendering the exclusionary rule applicable in the search-and-seizure context only as required by the federal Constitution. The defendant in Lance W. argued that because section 28(d) did not refer specifically to
After determining that section 28(d) properly should be interpreted as having abrogated the state constitutional exclusionary rule, the court in Lance W., supra, 37 Cal.3d 873, turned to an additional argument that was raised in that case—namely, that if section 28(d) were interpreted as having such an effect, the provision properly must be characterized as “an impermissible constitutional revision, rather than amendment, because it abrogates the judicial function of fashioning appropriate remedies for violation of constitutional rights.” (37 Cal.3d at p. 885.)
In addressing the amendment/revision argument, the court in Lance W. first pointed out that “[w]e have heretofore rejected a similar attack on [the 1982] Proposition 8 in its entirety” (citing Brosnahan, supra, 32 Cal.3d 236, 260-261) and that “[o]ur decision [in Brosnahan] necessarily encompassed a conclusion that section 28(d) was properly adopted through the amendment procedure . . . .” (Lance W., supra, 37 Cal.3d at p. 891.)
The court in Lance W., supra, 37 Cal.3d 873, then went on to further explain why the specific constitutional provision at issue in that case properly embodied a constitutional amendment rather than a constitutional revision. The court stated in this regard: “The people could by amendment of the Constitution repeal section 13 of article I in its entirety. The adoption of section 28(d) which affects only one incident of that guarantee of freedom from unlawful search and seizure, a judicially created remedy for violation of the guarantee, cannot be considered such a sweeping change either in the distribution of powers made in the organic document or in the powers which it vests in the judicial branch as to constitute a revision of the Constitution within the contemplation of article XVIII.” (Id. at p. 892, italics added.)
5
Our court next addressed the amendment/revision issue in Raven v. Deukmejian, supra, 52 Cal.3d 336 (Raven). Because Raven is the only case in which we have found a proposed constitutional amendment to constitute an impermissible constitutional revision resulting from the measure“s far-reaching qualitative effect on the preexisting constitutional structure, petitioners place considerable reliance upon our decision in that matter. For that reason, we discuss the decision in some detail.
Proposition 115 made a significant number of distinct changes to the
After summarizing Proposition 115“s numerous provisions, the court in Raven, supra, 52 Cal.3d 336, initially addressed the petitioners” single-subject challenge to the measure. Relying primarily upon our earlier decision in Brosnahan, supra, 32 Cal.3d 236, the court in Raven rejected the single-subject challenge to Proposition 115 (Raven, at pp. 346-349) and then turned to the amendment/revision issue.
The court then explained that the petitioners” revision argument focused primarily on only one of the constitutional changes made by Proposition 115, “namely, the amendment to article I, section 24, of the state Constitution relating to the independent nature of certain rights guaranteed by that Constitution.” (Raven, supra, 52 Cal.3d at p. 350.) The court, in expressly rejecting the suggestion that any of the other, more specific constitutional changes made by Proposition 115 constituted a revision, stated: “The additional constitutional changes effected by Proposition 115, involving such isolated matters as postindictment preliminary hearings, joinder of cases, use of hearsay, reciprocal discovery, and the People“s right to due process and a speedy, public trial, cannot be deemed matters which standing alone, or in the aggregate, substantially change our preexisting governmental framework.” (52 Cal.3d at p. 350, italics added.)
The court then proceeded in Raven, supra, 52 Cal.3d 336, to analyze the question whether the changes effected by the amendment of
After explaining there was a dispute between the parties concerning the proper interpretation of the language added by Proposition 115, with the petitioners contending that the measure would impact not only the specifically listed rights but other rights such as the right to jury trial and free speech, and the Attorney General arguing that the last sentence of the new measure “must be read as referring only to the enumerated rights mentioned in the immediately preceding sentence” (Raven, supra, 52 Cal.3d at p. 351), the court determined that there was no need to resolve that dispute, “for even if we adopt [the Attorney General“s] position, in our view the effect of the measure would be so far reaching as to amount to a constitutional revision beyond the scope of the initiative process.” (Ibid.)
In explaining the basis for its conclusion, the court in Raven discussed both the quantitative and qualitative effects of Proposition 115. The court concluded that “[q]uantitatively, Proposition 115 does not seem “so extensive . . . as to change directly the “substantial entirety” of the Constitution by the deletion or alteration of numerous existing provisions . . . .” [Citation.] The measure deletes no existing constitutional language and it affects only one constitutional article, namely, article I. As previously outlined, the measure adds three new sections to this article and amends a fourth section. In short, the quantitative effects on the Constitution seem no more extensive than those presented in prior cases upholding initiative measures challenged as constitutional revisions.” (Raven, supra, 52 Cal.3d at p. 351.)
With respect to the qualitative effects of Proposition 115, the court in Raven explained: “We have stated that, apart from a measure effecting widespread deletions, additions and amendments involving many constitutional articles, “even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also . . . . [A]n enactment which purported to vest all judicial power in the Legislature would amount to a revision without regard either to the length or complexity of the measure or the number of existing articles or sections affected by such change.” [Citations.] [[] Proposition 115 contemplates a similar qualitative change. In essence and practical effect, new article I, section 24, would vest all judicial interpretive power, as to fundamental criminal defense rights, in the United States Supreme Court. From a qualitative standpoint, the effect of Proposition 115 is devastating.” (Raven, supra, 52 Cal.3d at pp. 351-352, first and third italics in original.)
In elaborating upon why this provision constituted a far-reaching change in the nature of our state“s basic governmental plan, the court in Raven observed
In the course of its discussion, the court in Raven contrasted the proposed change to
After concluding that the changes made by Proposition 115 to
6
One year after Raven, supra, 52 Cal.3d 336, our court, in the case of Legislature v. Eu (1991) 54 Cal.3d 492 [286 Cal.Rptr. 283, 816 P.2d 1309], faced a multipronged constitutional challenge to Proposition 140, an initiative measure that—in order to limit the “power of incumbency” in the legislative branch—added and altered a number of separate constitutional provisions so as to (1) adopt term limits, (2) restrict retirement benefits for state legislators, and (3) limit expenditures for legislative staff and support services. In that case, the initial contention raised by the petitioners and addressed by the court was the claim that Proposition 140 as a whole, “and particularly its term and budgetary limitations on the Legislature, effected a constitutional revision rather than a mere amendment.” (54 Cal.3d at p. 506.)
In advancing this argument, the petitioners in Legislature v. Eu asserted that the effect of the term and budget limitations of Proposition 140 on the Legislature were as drastic as the provisions that our court had found invalid in Raven. The petitioners maintained that those limits would so weaken the Legislature that it would ” “be unable to discharge its traditional duties of policymaker, keeper of the purse, and counterweight to the executive branch in the way the Constitution intends. The result is a change so profound in the structure of our government that it constitutes a revision . . . .” ” (Legislature v. Eu, supra, 54 Cal.3d at p. 507.)
The court in Legislature v. Eu, supra, 54 Cal.3d 492, rejected the petitioners” argument, pointing out that “the basic and fundamental structure of the Legislature as a representative branch of government is left substantially unchanged by Proposition 140. Term and budgetary limitations may affect and alter the particular legislators and staff who participate in the legislative process, but the process itself should remain essentially as previously contemplated by our Constitution. This aspect distinguishes the present case from Raven, in which we struck down a provision that would have fundamentally changed and subordinated the constitutional role assumed by the judiciary in the governmental process. [Citation.] [[] As indicated in Raven, a qualitative revision includes one that involves a change in the basic plan of California government, i.e., a change in its fundamental structure or the foundational powers of its branches.” (54 Cal.3d at pp. 508-509, italics added; see also id. at p. 506 [“[T]he revision provision is based on the
Although noting that differences of opinion had been voiced regarding how the term and budgetary limits actually would affect the operation of the Legislature in practice, the court in Legislature v. Eu explained that “[o]ur prior decisions have made it clear that to find such a revision, it must necessarily or inevitably appear from the face of the challenged provision that the measure will substantially alter the basic governmental framework set forth in our Constitution.” (Legislature v. Eu, supra, 54 Cal.3d at p. 510, some italics added.) We pointed out that “Proposition 140 on its face does not affect either the structure or the foundational powers of the Legislature. . . . No legislative power is diminished or delegated to other persons or agencies. The relationships between the three governmental branches, and their respective powers, remain untouched.” (Id. at p. 509.)
Accordingly, we concluded in Legislature v. Eu, supra, 54 Cal.3d 492, that the changes embodied in Proposition 140 did not amount to a constitutional revision, but rather that the measure embodied a constitutional amendment that validly could be proposed and adopted through the initiative process.
7
Most recently, in Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016 [56 Cal.Rptr.3d 814, 155 P.3d 226] (Professional Engineers), we addressed a contention that Proposition 35, an initiative measure that added article XXII to the state Constitution relating to the contracting out of architectural and engineering services for public works, amounted to a constitutional revision. In that case, the challengers contended that ” “[t]aking away the Legislature“s plenary power to determine contracting out policies and procedures for the State of California, and shifting that power to the Executive branch, constitutes a fundamental restructuring of our traditional tripartite system of government.“” (40 Cal.4th at p. 1047.) In rejecting this contention, our decision in Professional Engineers pointed out that the challengers” claim rested on their erroneous characterization of the effects of Proposition 35, and emphasized that the measure “does not usurp the Legislature“s plenary authority to regulate private contracting by public agencies in a global sense, but simply permits public agencies to enter into contracts with private entities for architectural and engineering services without article-VII-derived restrictions [that is, civil service restrictions] on their ability to do so.” (40 Cal.4th at p. 1047.) Furthermore, we noted that “this is not a case in which the Legislature has been stripped of authority to regulate private contracting but, rather, a case in which a permissible
J
Having extensively reviewed (1) the origin and history of the distinction drawn in the
As already noted, Proposition 8 adds a single section—section 7.5—to article I of the
From a quantitative standpoint, it is obvious that Proposition 8 does not amount to a constitutional revision. The measure adds one 14-word section (§ 7.5) to article I—a section that affects two other sections of article I (§§ 1, 7) by creating an exception to thе privacy, due process, and equal protection clauses contained in those two sections as interpreted in the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757. Quantitatively, Proposition 8 unquestionably has much less of an effect on the preexisting state constitutional scheme than virtually any of the previous constitutional changes that our past decisions have found to constitute amendments rather than revisions. Indeed, petitioners do not even advance the argument that Proposition 8 constitutes a revision under the quantitative prong of the amendment/revision analysis.
Instead, petitioners rest their claim that Proposition 8 constitutes a constitutional revision solely upon the qualitative prong of the amendment/revision analysis. The constitutional change embodied in Proposition 8, however, differs fundamentally from those that our past cases have identified as the kind of qualitative change that may amount to a revision of the California Constitution.
Proposition 8 works no such fundamental change in the basic governmental plan or framework established by the preexisting provisions of the
Petitioners contend, however, that even if Proposition 8 does not make a fundamental change in the basic governmental plan or framework established by the Constitution, the measure nonetheless should be found to constitute a revision because it allegedly “strike[s] directly at the foundational constitutional principle of equal protection . . . by establishing that an unpopular group may be selectively stripped of fundamental rights by a simple majority of voters.” Petitioners” argument rests, initially, on the premise that a measure that abrogates a so-called foundational constitutional principle of law, no less than a measure that makes a fundamental change in the basic governmental structure or in the foundational power of its branches as established by the state Constitution, should be viewed as a constitutional revision rather than as a constitutional amendment. Petitioners suggest that their position is not inconsistent with our past amendment/revision decisions, on the theory that none of those decisions explicitly held that only a measure that makes a fundamental change in the state“s governmental plan or framework can constitute a constitutional revision. The concurring opinion of Justice Werdegar and the concurring and dissenting opinion of Justice Moreno embrace petitioners” proposed interpretation of the relevant California precedent. (See conc. opn. of Werdegar, J., post, at pp. 477-481; conc. & dis. opn. of Moreno, J., post, at pp. 490-496.)
In our view, a fair and full reading of this court“s past amendment/revision decisions demonstrates that those cases stand for the proposition that in deciding whether or not a constitutional change constitutes a qualitative revision, a court must determine whether the change effects a substantial change in the governmental plan or structure established by the Constitution. As we have seen, a number of our past amendment/revision decisions have involved initiative measures that made very important substantive changes in fundamental state constitutional principles such as the right not to be subjected to cruel or unusual punishment (Frierson, supra, 25 Cal.3d 142) and the right to be protected against unlawful searches and seizures (Lance W., supra, 37 Cal.3d 873)—initiative measures that, like the current Proposition 8, cut back on the greater level of protection afforded by preceding court decisions and were challenged as constitutional revisions on the ground that the constitutional changes they effected deprived individuals of important state constitutional protections they previously enjoyed and left courts unable to fully protect such rights. Nonetheless, in each case this court did not undertake an evaluation of the relative importance of the constitutional right at issue or the degree to which the protection of that right had
In Frierson, supra, 25 Cal.3d 142, for example, the defendant argued that because the constitutional measure at issue in that case—by providing that the death penalty was to be deemed not to contravene either the cruel or unusual punishment clause or any other provision of the Califоrnia Constitution—totally removed the state“s imposition of the death penalty “from a carefully built state constitutional structure,” the provision resulted in ““a significant change in a principle underlying our system of democratic government and can only be accomplished by constitutional revision.“” (25 Cal.3d at p. 186, italics added.) In rejecting this argument, the opinion in Frierson explained that the measure did not make a far-reaching or sweeping change in the nature of our basic governmental plan, because the judiciary retained its traditional “broad powers of judicial review of death sentences to assure that each sentence has been properly and legally imposed and to safeguard against arbitrary or disproportionate treatment.” (Id. at p. 187.) In other words, the court concluded that the measure did not significantly alter the basic structure or foundational powers of any branch of state government, including the judiciary.
The court“s analysis in Lance W., supra, 37 Cal.3d 873, was even more explicit in this regard in rejecting the defendant“s claim that a measure that abolished the state constitutional exclusionary rule for evidence obtained by unlawful search and seizure constituted a constitutional revision. The court there concluded that the measure “cannot be considered such a sweeping change either in the distribution of powers made in the organic document or in the powers which it vests in the judicial branch as to constitute a revision of the Constitution within the contemplation of article XVIII.” (Lance W., 37 Cal.3d at p. 892, italics added.)
Furthermore, as we have seen, in Legislature v. Eu, supra, 54 Cal.3d 492, in explicating the phrase “a change in the basic plan of California government” as used in the earlier California amendment/revision line of cases, we explained that this phrase refers to “a change in [the] fundamental [governmental] structure or the foundational powers of its branches” (id. at p. 509, italics added) and not, as petitioners suggest, simply to any change in an important constitutional right or principle.
Although petitioners seize upon isolated passages in a few decisions as assertedly supporting their position that a change other than a modification
in the governmental plan or framework may constitute a revision,22 a fair reading of those decisions in their entirety discloses that they do not provide such support but instead affirmatively reiterate and apply the established rule that, in order to constitute a qualitative revision, a constitutional measure must make a far-reaching change in the fundamental governmental structure or the foundational power of its branches as set forth in the Constitution. Under this standard, which has been applied repeatedly and uniformly in the precedents that govern this court‘s jurisprudence, it is evident that because Proposition 8 works no change of that nature in the California Constitution, it does not constitute a constitutional revision.23
To begin with, although petitioners describe Proposition 8 as “eliminating” or “stripping” same-sex couples of a fundamental constitutional right, as we have explained above that description drastically overstates the effect of Proposition 8 on the fundamental state constitutional rights of same-sex couples. As demonstrated, Proposition 8 does not eliminate the substantial substantive protections afforded to same-sex couples by the state constitutional rights of privacy and due process as interpreted in the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757. Rather, same-sex couples continue to enjoy the same substantive core benefits afforded by those state constitutional rights as those enjoyed by opposite-sex couples—including the constitutional right to enter into an officially recognized and protected family relationship with the person of one‘s choice and to raise children in that family if the couple so chooses—with the sole, albeit significant, exception that the designation of “marriage” is, by virtue of the new state constitutional provision, now reserved for opposite-sex couples. Similarly, Proposition 8 does not by any means “repeal” or “strip” gay individuals or same-sex couples of the very significant substantive protections afforded by the state equal protection clause either with regard to the fundamental rights of privacy and due process or in any other area, again with the sole exception of access
In explaining and relying upon the circumstance that Proposition 8 exclusively affects access to the designation of “marriage” and leaves intact all of the other very significant constitutional protections afforded same-sex couples under the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757, we emphasize that we are not in any way suggesting that the change embodied in Proposition 8 is unimportant or insignificant. In considering the amendment/revision distinction embodied in the California Constitution, however, it is crucial to understand that the amendment process never has been reserved only for minor or unimportant changes to the state Constitution. In this regard, it is useful to keep in mind that (1) the right of women to vote in California, (2) the initiative, referendum, and recall powers, (3) the reinstatement of the death penalty, (4) an explicit right of privacy, (5) a substantial modification of the statewide real property tax system, and (6) legislative term limits—to list only a very few examples—all became part of the California Constitution by constitutional amendment, not by constitutional revision.24 Thus, it is clear that the distinction drawn by the California
Petitioners advance a number of additional arguments in support of their claim that Proposition 8 should be considered a constitutional revision, but none of these arguments withstands analysis. First, petitioners contend that Proposition 8 represents an “unprecedented” instance in which a majority of voters have altered the California Constitution so as to diminish the constitutional rights of a minority group; petitioners assert that because such alteration is contrary to the “countermajoritarian” purpose served by constitutional provisions, such a change has not and cannot be effected by a constitutional amendment. Contrary to petitioners’ contention, however, the current Proposition 8 is by no means the first instance in which the California Constitution has been altered, by a constitutional amendment approved by a majority of voters, in a manner that lessens the state constitutional rights of a minority group that has been the subject of past discrimination.
Thus, for example, two prominent initiative measures, adopted by majority vote, added provisions to the California Constitution modifying the protections that the Constitution otherwise would afford to groups that historically have been the subject of prejudice and discrimination: Proposition 14 (a state constitutional amendment, adopted in 1964, that repealed a statutory provision barring racial discrimination in the sale or rental of housing) and Proposition 209 (a state constitutional amendment, adopted in 1996, that prohibits—in public employment, public education, and public contracting—certain types of affirmative action aimed at overcoming the continuing effects of past societal discrimination against racial minorities and women).25 Although Proposition 14 subsequently was held invalid under the federal Constitution (Mulkey v. Reitman (1966) 64 Cal.2d 529 [50 Cal.Rptr. 881, 413 P.2d 825], affd. sub nom. Reitman v. Mulkey (1967) 387 U.S. 369 [18 L.Ed.2d 830, 87 S.Ct. 1627]), neither that measure nor Proposition 209 was found to constitute an impermissible constitutional revision under the state Constitution. Indeed, although vigorous legal challenges were waged against each of these measures (see Mulkey, supra, 64 Cal.2d at pp. 535-543 [Prop. 14]; Coalition for Economic Equity v. Wilson (9th Cir. 1997) 122 F.3d 692 [rejecting federal equal protection challenge to Prop. 209], revg. (N.D.Cal. 1996) 946 F.Supp. 1480), the circumstance that in neither case did the challengers even argue that the measure at issue should be characterized as a constitutional revision rather than as a constitutional amendment affords a realistic indication of the weakness and unprecedented nature of petitioners’ present claim.26
Similarly, there also have been a number of instances in which a constitutional amendment (rather than a constitutional revision) diminishing the state constitutional rights of a minority group has been proposed by the Legislature and ratified by a majority vote of the electorate. One such example is the 1979 constitutional amendment that added a proviso to the state equal protection clause in response to a decision of this court authorizing California courts to impose the busing of students as a remedy for de facto school segregation. (See Crawford v. Board of Education (1976) 17 Cal.3d 280, 310 [130 Cal.Rptr. 724, 551 P.2d 28].) This amendment, which carves out an exception to the state equal protection clause and remains part of article I, section 7, subdivision (a) of the California Constitution, states in part that “nothing contained herein or elsewhere in this Constitution imposes upon the State of California or any public entity, board, or official any obligations or responsibilities which exceed those imposed by the Equal Protection Clause of the 14th Amendment to the United States Constitution with respect to the use of pupil school assignment or pupil transportation.” Although a vigorous constitutional challenge under the federal Constitution was leveled against this amendment, no claim was raised that the measure was mislabeled as a
An additional, quite dramatic example of a constitutional amendment, proposed by the Legislature and adopted by a majority of voters, which diminished the state constitutional rights of a disfavored minority group, is the 1894 amendment to the California Constitution that entirely withdrew the right to vote from all persons not literate in the English language. (
In addition to the foregoing examples of past state constitutional amendments that diminished state constitutional rights of racial and ethnic minorities and women (refuting petitioners’ description of Prop. 8 as “unprecedented” in this regard), there are numerous constitutional amendments—the subjects of decisions previously discussed in this opinion—that diminished many state constitutional rights of criminal defendants, further belying petitioners’ assertion that Proposition 8 represents a unique instance in which a majority of California voters, by the approval of a constitutional amendment, have modified state constitutional provisions intended to serve a countermajoritarian function. As past California cases have recognized, the numerous constitutional
Under the California Constitution, the constitutional guarantees afforded to individuals accused of criminal conduct are no less well established or fundamental than the constitutional rights of privacy and due process or the guarantee of equal protection of the laws. (See, e.g., Miller v. Superior Court (1999) 21 Cal.4th 883, 892 [89 Cal.Rptr.2d 834, 986 P.2d 170] [distinct provisions of the
As is demonstrated by the foregoing discussion, and contrary to petitioners’ claim that a determination that Proposition 8 constitutes a constitutional amendment would represent a dramatic change in existing state constitutional principles, it is petitioners’ proposal that radically would alter the long and firmly established understanding of the amendment/revision distinction embodied in the California Constitution. In basing their argument entirely on the circumstance that Proposition 8 has the effect of diminishing one aspect of a fundamental right of a group that this court has determined properly should be considered a “suspect class” for purposes of the state constitutional equal protection clause, petitioners in essence ask this court to read into the
That petitioners’ proposal would mark a sharp departure from this court‘s past understanding of the amendment/revision dichotomy is further demonstrated by the circumstance that under petitioners’ approach, the people would have the ability—through the initiative process—to extend a constitutional right to a disfavored group that had not previously enjoyed that right, but the people would lack the power to undo or repeal that very same extension of rights through their exercise of the identical initiative process. Thus, for example, had this court rejected the constitutional challenges to the existing marriage statutes in its decision in the Marriage Cases, supra, 43 Cal.4th 757, and had the people responded by adopting an initiative measure amending the privacy, due process, and equal protection provisions of the state Constitution to guarantee same-sex couples equal access to the designation of marriage, that measure would be viewed as a constitutional amendment that properly could be adopted through the initiative process. But if an initiative measure thereafter was proposed to repeal those recently adopted changes to the state Constitution, that measure, under petitioners’ approach, would be designated a constitutional revision, and the people would be powerless to adopt that change through the initiative process. Again, neither the history of the provisions governing the making of changes to the California Constitution, nor the many past cases interpreting and applying those provisions, support petitioners’ assertion that the amendment/revision distinction properly should be understood as establishing such a “one-way street” or as mandating such a seemingly anomalous result.
In a somewhat related vein, petitioners additionally maintain that Proposition 8 cannot be viewed as a constitutional amendment rather than as a revision because, should this court so hold, there would be nothing to prevent a majority of California voters from adopting future measures designed to carve out still more exceptions to other fundamental rights, leading to a situation in which the state constitutional rights of any and all disfavored minority groups could be entirely obliterated. The “slippery slope” mode of analysis reflected in this argument, however, finds no support in any of the numerous prior California decisions that have considered the question whether other proposed constitutional changes constituted a constitutional amendment or a constitutional revision.
Similarly, as we have explained, in Amador, supra, 22 Cal.3d 208, Brosnahan, supra, 32 Cal.3d 236, and Legislature v. Eu, supra, 54 Cal.3d 492, we rejected challenges to the measures at issue in those cases that were based on speculation regarding potential future consequences, emphasizing in Legislature v. Eu that “[o]ur prior decisions have made it clear that to find such a revision, it must necessarily or inevitably appear from the face of the challenged provision that the measure will substantially alter the basic governmental framework set forth in our Constitution.” (54 Cal.3d at p. 510, original italics.) Indeed, all of our cases in this area have followed the approach set forth more than 60 years ago in our decision in McFadden, supra, 32 Cal.2d 330, 348: ”Each situation involving the question of amendment, as contrasted with revision, of the Constitution must . . . be resolved upon its own facts.” (Italics added.)
Speculation regarding a potential “parade of horrible amendments” that might be adopted in the future rests upon the dubious factual premise of a highly unrealistic scenario of future events. Resort to such a speculative approach plausibly could provide a basis for a court to conclude that virtually any future proposed constitutional change constitutes a constitutional revision because the change proposed could be followed by a series of comparable changes in other areas that fundamentally would alter the constitutional landscape. As we have explained, the past decisions of this court are irreconcilable with the mode of analysis suggested by petitioners. (See also Raven, supra, 52 Cal.3d 336, 355 [contrasting a proposed change to art. I, § 24, involving a “wide spectrum” of state constitutional rights, with the “isolated provisions” at issue in Frierson, supra, 25 Cal.3d 142, and Lance W., supra, 37 Cal.3d 873].)
The provisions of the California Constitution draw no distinction between the types of constitutional amendments that may be proposed through the initiative process as compared to those that may be proposed by the Legislature, and our past cases indicate that no such distinction exists. (See McFadden, supra, 32 Cal.2d 330, 333-334.)
In the course of their argument, petitioners also rely upon a portion of the passage in the 1894 decision in Livermore, supra, 102 Cal. 113, quoted above (ante, at p. 419), in which the court stated that “[t]he very term ‘constitution’ implies an instrument of a permanent and abiding nature” and “the significance of the term ‘amendment’ implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.” (102 Cal. at pp. 118-119.) Petitioners maintain that under this standard, Proposition 8 cannot properly be considered an amendment, because it does not “improve” or “better carry out the purpose” of the preexisting constitutional provisions. As suggested by our earlier discussion of the Livermore decision, the passage in question was dictum inasmuch as it was not necessary to the court‘s determination that the measure at issue in that case—changing the location of the state capital—constituted a constitutional amendment. (Ante, at p. 420.) Moreover, as demonstrated by the many California decisions rendered since Livermore, the question whether a proposed constitutional change constitutes a constitutional amendment or instead a constitutional revision does not turn upon whether a court is of the view that the proposal “will effect an improvement” or will “better carry out the purpose” of the preexisting constitutional provisions; the numerous constitutional amendments that have
Although we reject petitioners’ contention that the enactment of Proposition 8 was imprоper because that measure was adopted through the initiative process (as a constitutional amendment rather than as a constitutional revision), in order to dispel any misunderstanding or confusion we wish to make it clear that we are not suggesting it is impossible or improper for a constitution to contain limitations on change designed to address the concerns voiced by petitioners in this case. Like the federal Constitution, many state constitutions do not provide for the people‘s exercise of the initiative power at all, and in those states, of course, no such constitutional change can be proposed directly by the people.28 Further, some state constitutions that embrace the initiative power do not permit it to be used to
As we have seen, when the initiative power was added to the California Constitution in 1911, the relevant provision specified that the initiative afforded the people authority to propose and adopt statutes and “amendments to the constitution.” (
It is not our role to pass judgment on the wisdom or relative merit of the current provisions of the California Constitution governing the means by which our state Constitution may be altered. (See Wright v. Jordan (1923) 192 Cal. 704, 711–712 [221 P. 915].) In the absence of an explicit subject matter limitation on the use of the initiative to propose and adopt constitutional
Accordingly, we hold that Proposition 8 constitutes a constitutional amendment rather than a constitutional revision.
K
In reaching the conclusion that Proposition 8 represents a constitutional amendment rather than a constitutional revision, we have relied upon the history of the relevant provisions of the California Constitution and upon the numerous California decisions that have applied those provisions. Our Constitution, however, is not the only state constitution that draws a distinction between constitutional amendments and constitutional revisions. As we shall see, each out-of-state decision that has considered whether an initiative measure similar to Proposition 8—that is, an initiative limiting marriage to a union of a man and a woman—represents a constitutional amendment, or instead a constitutional revision under a state constitution that embodies a comparable constitutional amendment/revision distinction, has concluded that the measure constitutes an amendment to, rather than a revision of, the applicable state constitution.34
In analyzing the distinction drawn in the Alaska Constitution between constitutional amendments and constitutional revisions, the court in Bess v. Ulmer, supra, 985 P.2d 979, drew very heavily upon the line of California amendment/revision decisions that we have reviewed above, and ultimately generally agreed with the standard set forth in those decisions. (See 985 P.2d at pp. 984-987.) The court then applied that standard to the three ballot propositions before it in that case. With regard to the first ballot measure, the criminal justice proposal, the court observed that “[t]his proposal bears an obvious similarity to the initiative measure at issue in Raven” (id., at p. 987) and concluded that “[l]ike the Raven court, we find the proposal to ‘amount to a constitutional revision beyond the scope of the [ballot] process . . . .‘” (Ibid.) With regard to the second ballot measure—the one providing in part
As the foregoing description reveals, in Bess v. Ulmer, supra, 985 P.2d 979, the court—faced with essentially the same question that is before us in the present case—concluded that the Alaska measure constituted a constitutional amendment.
The Oregon Court of Appeals reached a similar conclusion in Martinez v. Kulongoski (2008) 220 Ore.App. 142 [185 P.3d 498]. In that case, the plaintiffs sought a declaration that a 2004 ballot measure (Measure 36) adding a new section (art. XV, § 5a) to the Oregon Constitution “embodied a voter-initiated revision (as opposed to amendment) of the constitution in violation of [Oregon Constitution] Article XVII, section 2.” (185 P.3d at p. 500.)38 The new section of that state‘s constitution added by Measure 36 provides in full: “It is the policy of Oregon, and its political subdivisions, that only a marriage between one man and one woman shall be valid or legally recognized as a marriage.” The plaintiffs in Martinez, like petitioners in the cases before us, argued that Measure 36 should be considered a revision “because ‘[t]he intended and inevitable effect of the measure is to exclude a distinct minority group of citizens from the equal benefits and obligations of [state] law . . . .‘” (185 P.3d at p. 502.) The court in Martinez rejected that claim, concluding that Measure 36 constituted a constitutional amendment rather than a constitutional revision. In rendering its decision, the court in Martinez relied heavily upon an earlier Oregon appellate court ruling in Lowe v. Keisling (1994) 130 Ore.App. 1 [882 P.2d 91], which held that a
Although the Massachusetts Constitution does not contain a distinction between constitutional amendments and constitutional revisions similar to those embodied in the California, Alaska, and Oregon Constitutions, the relatively recent decision of the Supreme Judicial Court of Massachusetts in Schulman v. Attorney General (2006) 447 Mass. 189 [850 N.E.2d 505] (Schulman) nonetheless also bears some relevance to the issue before us. In Schulman, the Massachusetts high court addressed the validity of an initiative petition that had been drafted in response to that court‘s decision in Goodridge v. Department of Public Health, supra, 798 N.E.2d 941 (Goodridge), in which the court held that the Massachusetts marriage statute—which the court interpreted as restricting civil marriages to unions between persons of the opposite sex—violated the due process and equal protection guarantees of the Massachusetts Constitution. The initiative measure at issue in Schulman proposed to amend the Massachusetts Constitution to provide that “‘the Commonwealth and its political subdivisions shall define marriage only as the union of one man and one woman.‘” (Schulman, supra, 850 N.E.2d at p. 506.) Under Massachusetts law, such an initiative petition first must be presented to the state Attorney General, who reviews the proposed measure to determine whether it is a lawful initiative measure or instead is excluded from the initiative process by the Massachusetts Constitution. In Schulman, after the Attorney General certified the petition as a permissible initiative measure, a court action was filed challenging the certification, and the issue was brought directly before the Massachusetts high court.
As already noted, unlike the California Constitution, the Massachusetts Constitution places specific substantive limits on the matters that may be proposed by an initiative petition. (See
In Schulman, the Massachusetts high court unanimously rejected the plaintiff‘s contention, explaining that “‘reversal of a judicial decision’ has a specialized meaning in our jurisprudence” (Schulman, supra, 850 N.E.2d at p. 507)—referring only to the vacating or setting aside of a judgment in a particular case—and that such language “does not bar the people from using the initiative process to amend the Constitution prospectively, thereby changing the substantive law to be applied and effectively ‘overruling’ the precedential effect of a prior court decision interpreting [the Constitution] . . . .” (Id., at pp. 508-509.) In reaching that conclusion, the court in Schulman quoted with approval an earlier Massachusetts decision that specifically declared: “‘[T]he initiative process permits the people to petition for a constitutional amendment that overrules a court decision when the court has declared a statute to be in violation of our Constitution . . . .‘” (Id., at p. 510, fn. 12, quoting Albano v. Attorney General (2002) 437 Mass. 156 [769 N.E.2d 1242, 1250]; see also Mazzone v. Attorney General (2000) 432 Mass. 515 [736 N.E.2d 358, 369] [“Citizens [may] . . . overrule a decision based on State constitutional grounds, but they [may] do so only by constitutional amendment.“].)
As illustrated by the decision of the Massachusetts Supreme Judicial Court in Schulman, supra, 850 N.E.2d 505, even under a state constitution that places significant limits on the initiative process, the people, through the initiative process, validly may propose an amendment to the state constitution that prospectively changes the substantive constitutional rule set forth in a judicial decision analogous to the majority opinion in our Marriage Cases, supra, 43 Cal.4th 757. Thus, although the Schulman decision does not speak directly to the amendment/revision issue, the Massachusetts court‘s conclusion in that case demonstrates that, contrary to petitioners’ assertions in the
Finally, the very recent decision of the Iowa Supreme Court in Varnum v. Brien, supra, 763 N.W.2d 862, is also instructive in this regard. In that case, the Iowa Supreme Court held that the Iowa statute limiting marriage to a union between a man and a woman violated the equal protection clause of the Iowa Constitution. Nonetheless, in the course of its unanimous opinion, the Iowa high court took care to point out explicitly that “it should be recognized that the constitution belongs to the people, not the government or even the judicial branch of government. See
L
For the reasons discussed above, we conclude that Proposition 8 constitutes a constitutional amendment, rather than a constitutional revision, and that therefore it is not invalid because it was proposed through the initiative process.
IV
In addition to contending that Proposition 8 represents a constitutional revision, petitioners assert this measure is invalid because it violates the separation of powers doctrine embodied in the California Constitution. The gist of petitioners’ argument is that this doctrine is violated when the initiative process is used to “readjudicate” controversies that have been litigated and settled by the courts. Because, in petitioners’ view, Proposition 8 purports to readjudicate the controversy that was litigated and resolved in the Marriage Cases, supra, 43 Cal.4th 757, they maintain that this initiative measure violates the state constitutional separation of powers doctrine. As we explain, we conclude this claim lacks merit.
Article III, section 3 of the California Constitution—the state constitutional separation of powers clause—provides: “The powers of State government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.” As we observed in Superior Court v. County of Mendocino (1996) 13 Cal.4th 45 [51 Cal.Rptr.2d 837, 913 P.2d 1046]: “Although the language of . . . article III, section 3, may suggest a sharp demarcation between the operations of the three branches of government, California decisions have long recognized that, in reality, the separation of powers doctrine ‘“does not mean that the three departments of our government are not in many respects mutually dependent“’ [citation], or that the actions of one branch may not significantly affect those of another branch. . . . Such interrelationship . . . lies at the heart of the constitutional theory of ‘checks and balances’ that the separation of powers doctrine is intended to serve.” (Id., at pp. 52–53.)
To the extent petitioners’ argument rests upon the theory that once a court has construed a provision of the state Constitution in a particular manner, the people may not employ the initiative power to change the provisions of the state Constitution for the future, their contention similarly lacks merit. Our past cases make clear that “[t]he people may adopt constitutional amendments which define the scope of existing state constitutional protections” (People v. Valentine (1986) 42 Cal.3d 170, 181), and that when they do so the new “specific command supersedes any previous inconsistent interpretations of our state charter‘s . . . guarantees.” (Ibid., citation omitted.) As demonstrated by the numerous decisions reviewed above (see, e.g., Frierson, supra, 25 Cal.3d 142; Brosnahan, supra, 32 Cal.3d 236; Raven, supra, 52 Cal.3d 336), there have been many instances in the past in which the people have exercised their authority under the initiative power to alter the provisions of the state Constitution in response to decisions of this court, significantly changing the substantive content of the state Constitution with regard to its application to future events and controversies. The suggestion that such action violates the separation of powers doctrine embodied in the California Constitution flies in the face of these authorities.43
Under the California Constitution, the authority to propose and adopt amendments to the Constitution is a power specifically recognized as one that the people may exercise through the initiative process. (
Accordingly, we conclude there is no merit in the claim that Proposition 8 violates the separation of powers doctrine and should be held invalid on that ground.
V
In his briefing before this court, the Attorney General agrees with our conclusions that Proposition 8 constitutes a constitutional amendment rather than a constitutional revision, and that the measure does not violate the separation of powers doctrine. The Attorney General, however, advances a novel, alternative theory under which he claims Proposition 8 should be held invalid. Relying largely on the circumstance that
The Attorney General‘s argument is fundamentally flawed on a number of levels. First, as wе have explained above and as the Attorney General‘s brief itself recognizes in its discussion of the amendment/revision issue, Proposition 8 does not “abrogate” or eliminate a same-sex couple‘s “inalienable” constitutional rights as guaranteed by
Second, contrary to the implication of the Attorney General‘s assertion, the circumstance that the rights listed in
Third, the “inalienable” nature of a constitutional right never has been understood to preclude the adoption of a constitutional amendment that limits or restricts the scope or application of such a right. As noted above (ante, at p. 413, fn. 12), from the beginnings of our state constitutional history, the right of the people “to alter or reform” the provisions of the Constitution itself has been understood to constitute one of the fundamental rights to which
Accordingly, there is no basis for suggesting that the inalienable rights set forth in
In urging this court to confer upon the “inalienable rights” terminology of
In defending his argument, the Attorney General emphasizes that he “is duty bound to uphold the whole of the Constitution, not only the People‘s reservation of the initiative power, but also the People‘s expression of their will in the Constitution‘s Declaration of Rights.” (Original italics.) When we examine the entirety of the California Constitution, however, we find nothing that exempts
Accordingly, we must decline to invalidate Proposition 8 on the theory advanced by the Attorney General.
Having concluded that Proposition 8 is not invalid on any of the grounds advanced by petitioners or the Attorney General, we reach the third issue upon which we requested briefing, namely, the effect (if any) of Proposition 8 on the marriages of same-sex couples performed prior to the adoption of Proposition 8.
On this question, petitioners and the Attorney General maintain that Proposition 8 properly must be interpreted to operate only prospectively and not to invalidate or have any other effect on the marriages of same-sex couples that were performed before Proposition 8 became effective. Interveners, by contrast, contend that marriages of same-sex couples performed before Proposition 8 took effect no longer are valid or recognized under California law.
As we shall explain, we conclude that Proposition 8 should be interpreted to apply prospectively and not to invalidate retroactively the marriages of same-sex couples performed prior to its effective date.
We begin with the well-established general principles governing the question whether a statutory or constitutional provision should be interpreted to apply prospectively or retroactively. In Evangelatos v. Superior Court (1988) 44 Cal.3d 1188 (Evangelatos)—perhaps the leading California decision on this subject—our court explained that “[i]t is a widely recognized legal principle . . . that in the absence of a clear legislative intent to the contrary statutory enactments apply prospectively.” (44 Cal.3d at pp. 1193-1194.) After canvassing numerous past California decisions in this area, the court in Evangelatos observed that “California continues to adhere to the time-honored principle . . . that in the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application.” (Id. at pp. 1208-1209, italics added.)
Our decision in Evangelatos, supra, 44 Cal.3d 1188, itself applied this general principle to a statutory provision adopted through the initiative process, and thus it is clear that this principle applies to initiative measures as well as to legislative enactments. In addition, past cases further establish that this principle applies equally to constitutional amendments adopted through the initiative process. (Rosasco v. Commission on Judicial Performance (2000) 82 Cal.App.4th 315, 323.) No party disputes these points.
We proceed to evaluate the prospectivity or retroactivity of Proposition 8 in light of these controlling principles. As we have seen, Proposition 8 is very
Interveners contend, however, that even though Proposition 8 does not contain a retroactivity clause, the “plain language” of the measure—“[o]nly marriage between a man and a woman is valid or recognized in California” (italics added)—“encompasses both pre-existing and later-created” marriages of same-sex couples and “declares that they are not valid or recognized in California.” As past decisions demonstrate, however, the circumstance that the language of a measure is written in the present tense (“is valid or recognized“) does not clearly demonstrate that the measure is intended to apply retroactively. (See, e.g., McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, 471 [holding statute providing that “‘[a]n employee . . . is personally liable for any harassment . . . perpetrated by the employee . . .‘” (italics added) does not apply retroactively to harassment committed before the enactment]; Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 842 (Myers) [holding statute providing that “‘there exists no statutory bar‘” for claims of smokers “‘who have suffered or incurred injuries‘” (some italics omitted) does not apply retroactively to impose liability on tobacco company for sales occurring during period in which tobacco companies enjoyed statutory immunity].)
Although the thrust of their “plain language” argument is somewhat unclear, interveners may be suggesting that so long as Proposition 8 is applied only to acts that occur after Proposition 8 became effective, the measure is not being applied retroactively but rather prospectively, even if the marriages that are now (or in the future would be) denied recognition were performed prior to the adoption of Proposition 8. To the extent this accurately reflects interveners’ position, our prior cases establish that this contention lacks merit. As we explained in Myers: “[A] retrospective law “‘is one which affects rights, obligations, acts, transactions and conditions which are performed or exist prior to the adoption of the statute.‘“” [Citations.] . . . “‘[E]very statute, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a
Accordingly, we turn to the question whether “it is very clear from extrinsic sources that . . . the voters must have intended a retroactive application.” (Evangelatos, supra, 44 Cal.3d 1188, 1209.) When an initiative measure is at issue, the most potentially informative extrinsic source is usually the material contained in the ballot pamphlet that is mailed to each voter. (See, e.g., People v. Litmon (2008) 162 Cal.App.4th 383, 407-408.) In the case of Proposition 8, neither the official title and summary prepared by the Attorney General, nor the analysis prepared by the Legislative Analyst, contains any reference to the retroactivity issue. Similarly, neither the argument in favor of Proposition 8 nor the argument against it adverts to the question of retroactivity.
To support their claim that extrinsic sources demonstrate that the voters must have intended a rеtroactive application of the measure, interveners rely upon a sentence that appears in the rebuttal to the argument against Proposition 8. That sentence states: “Your YES vote on Proposition 8 means that only marriage between a man and a woman will be valid or recognized in California, regardless of when or where performed.” (Nov. 2008 Voter Information Guide, supra, rebuttal to argument against Prop. 8, p. 57.)
In our view, this sentence—which does not explicitly state the measure would invalidate or deny recognition to marriages of same-sex couples lawfully performed in California prior to adoption of the measure—is insufficient to demonstrate, clearly and unambiguously, that the voters must have intended a retroactive application. (See, e.g., Californians for Disability Rights v. Mervyn‘s, LLC, supra, 39 Cal.4th 223, 229 [courts “have been cautious not to infer the voters’ or the Legislature‘s intent on the subject of prospective versus retrospective operation from ‘vague phrases’ [citation] and ‘broad, general language‘“]; Myers, supra, 28 Cal.4th at p. 841 [“‘statute that is ambiguous with respect to retroactive application is construed . . . to be unambiguously prospective‘“].) Indeed, the absence of a very clear and unambiguous statement that the measure would have the effect of invalidating the estimated 18,000 marriages of same-sex couples that already had been
Furthermore, our determination that Proposition 8 cannot properly be interpreted to apply retroactively to invalidate lawful marriages of same-sex couples that were performed prior to the adoption of Proposition 8 is additionally supported by our recognition that a contrary resolution of the retroactivity issue would pose a serious potential conflict with the state constitutional due process clause.
Past cases establish that retroactive application of a new measure may conflict with constitutional principles “if it deprives a person of a vested right without due process of law.” (In re Marriage of Buol (1985) 39 Cal.3d 751, 756 [applying state due process clause].) In In re Marriage of Bouquet (1976) 16 Cal.3d 583, 592, this court explained that “[i]n determining whether a retroactive law contravenes the due process clause, we consider such factors as the significance of the state interest served by the law, the importance of the retroactive application of the law to the effectuation of that interest, the extent of reliance upon the former law, the legitimacy of that reliance, the extent of actions taken on the basis of that reliance, and the extent to which the retroactive application of the new law would disrupt those actions.” (See also Buol, supra, 39 Cal.3d at p. 761; In re Marriage of Fellows (2006) 39 Cal.4th 179, 189.)
Here, same-sex couples who married after the decision in the Marriage Cases, supra, 43 Cal.4th 757, was rendered, and before Proposition 8 was adopted, acquired vested property rights as lawfully married spouses with respect to a wide range of subjects, including, among many others, employment benefits, interests in real property, and inheritances. These couples’ reliance upon this court‘s final decision in the Marriage Cases was entirely legitimate. A retroactive application of the initiative would disrupt thousands of actions taken in reliance on the Marriage Cases by these same-sex couples, their employers, their creditors, and many others, throwing property rights into disarray, destroying the legal interests and expectations of thousands of couples and their families, and potentially undermining the ability of
Under these circumstances, we conclude that interpreting Proposition 8 to apply retroactively would create a serious conflict between the new constitutional provision and the protections afforded by the state due process clause. In the absence of a clear and unambiguous statement that the new provision is to have such an effect, the general legal guideline that requires courts to interpret potentially conflicting constitutional provisions in a manner that harmonizes the provisions, to the extent possible, further supports the conclusion that Proposition 8 properly must be interpreted to apply only prospectively.
Accordingly, applying these well-established principles of interpretation relating to the question of retroactivity, we conclude that Proposition 8 cannot be interpreted to apply retroactively so as to invalidate the marriages of same-sex couples that occurred prior to the adoption of Proposition 8. Those marriages remain valid in all respects.48
VII
In summary, we conclude that Proposition 8 constitutes a permissible constitutional amendment (rather than an impermissible constitutional revision), does not violate the separation of powers doctrine, and is not invalid under the “inalienable rights” theory proffered by the Attorney General. We further conclude that Proposition 8 does not apply retroactively and therefore that the marriages of same-sex couples performed prior to the effective date of Proposition 8 remain valid.
Having determined that none of the constitutional challenges to the adoption of Proposition 8 have merit, we observe that if there is to be a change to
In each of the three cases before us, the request for a peremptory writ of mandate is denied. Each party shall bear its own costs.
Kennard, J., Baxter, J., Chin, J., and Corrigan, J., concurred.
KENNARD, J., Concurring.—When California voters exercise their power of initiative, a simple majority vote is sufficient to amend any part of the state Constitution. (
One year ago, this court decided that California‘s statutory law denying same-sex couples the right to marry violated the privacy, due process, and equal protection provisions of our state Constitution as it then read. (In re Marriage Cases (2008) 43 Cal.4th 757 (Marriage Cases).) I signed the majority opinion in that case, and I also authored a concurring opinion in which I answered the argument that the marriage rights of same-sex couples did not present an issue of constitutional law for this court to decide but instead was essentially a social or political controversy inappropriate for judicial resolution. In my separate opinion, I wrote: “Absent a compelling justification, our state government may not deny a right as fundamental as marriage to any segment of society. Whether an unconstitutional denial of a fundamental right has occurred is not a matter to be decided by the executive or legislative branch, or by popular vote, but is instead an issue of constitutional law for resolution by the judicial branch of state government. Indeed, this court‘s decision in Lockyer [v. City and County of San Francisco (2004) 33 Cal.4th 1055] made it clear that the courts alone must decide whether excluding individuals from marriage because of sexual orientation can be reconciled with our state Constitution‘s equal protection guarantee. (Lockyer, supra, 33 Cal.4th at pp. 1068-1069.) The court today discharges its constitutional obligation by resolving that issue.” (Marriage Cases, supra, 43 Cal.4th at p. 860 (conc. opn. of Kennard, J.).) My view on this issue has not changed: Interpreting and enforcing the state Constitution is a judicial responsibility, and the judiciary‘s duty to exercise this authority is particularly important and grave when constitutionally guaranteed rights and freedoms are at stake. What has changed, however, is the state Constitution that this court interpreted and enforced in the Marriage Cases.
Although the people through the initiative power may not change this court‘s interpretation of language in the state Constitution, they may change the constitutional language itself, and thereby enlarge or reduce the personal rights that the state Constitution as so amended will thereafter guarantee and protect. The difference between interpretation and alteration is the difference between the judicial and legislative powers. Interpretation of existing statutory and constitutional provisions is a fundamental power of the judicial branch, while alteration of existing statutory and constitutional provisions—by addition, deletion, or modification—is a fundamental legislative power that the people may exercise through the initiative process. Although this court‘s decision in the Marriage Cases, supra, 43 Cal.4th 757, remains the final word on the meaning of the state Constitution as it then read, the people have now used their initiative power to refashion the wording of the California Constitution and by this means have altered its substance, and thus its meaning, as of the effective date of the initiative measure.
For the reasons explained in the majority opinion, petitioners have failed to establish any legal basis to invalidate the initiative measure that added section 7.5 to article I of our state Constitution. Because it did not fundamentally alter California‘s state governmental plan, this initiative measure could validly be enacted by the procedures prescribed for constitutional amendments rather than the more rigorous procedures prescribed for constitutional revisions. (See
Unlike the state Constitution that this court interpreted in the Marriage Cases, supra, 43 Cal.4th 757, the currently existing California Constitution, while continuing to protect the rights of same-sex couples to form officially recognized family relationships, now restricts marriage to opposite-sex couples. As members of the judicial branch, the justices of this court have a
With these observations, I concur fully in the court‘s opinion authored by the Chief Justice.
WERDEGAR, J., Concurring.—I agree with the majority that Proposition 8 (Gen. Elec. (Nov. 4, 2008)) is a valid amendment to the California Constitution rather than a procedurally defective revision.1 I reject, however, much of the majority‘s analysis. The majority purports to find in this court‘s prior decisions a definition of the term “revision“—one focused on governmental structure and organization—that categorically excludes Proposition 8 and thus avoids the daunting task of reconciling with our constitutional tradition a voter initiative clearly motivated at least in part by group bias. In fact our prior decisions do not establish the majority‘s definition, nor does it find support in the text or history of the Constitution. The drafters of our Constitution never imagined, nor would they have approved, a rule that gives the foundational principles of social organization in free societies, such as equal protection, less protection from hasty, unconsidered change than principles of governmental organization.
I
The majority‘s lengthy review of our prior cases on the subject (maj. opn., ante, at pp. 418-440) culminates in this conclusion: “[T]he numerous past decisions of this court that have addressed this issue all have indicated that the type of measure that may constitute a revision of the California Constitution is one that makes ‘far reaching changes in the nature of our basic governmental plan’ [citation], or, stated in slightly different terms, that ‘substantially alter[s] the basic governmental framework set forth in our Constitution.‘” (Maj. opn., ante, at p. 441, quoting Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 223, and Legislature v. Eu (1991) 54 Cal.3d 492, 510
Until today, the court has never held that a constitutional initiative was an amendment rather than a rеvision because it affected only individual rights rather than governmental organization. One reads in the opinion that “a number of our past amendment/revision decisions have involved initiative measures that made very important substantive changes in fundamental state constitutional principles such as the right not to be subjected to cruel or unusual punishment ([People v.] Frierson [(1979)] 25 Cal.3d 142) and the right to be protected against unlawful searches and seizures ([In re] Lance W. [(1985)] 37 Cal.3d 873)—initiative measures that, like the current Proposition 8, cut back on the greater level of protection afforded by preceding court decisions and were challenged as constitutional revisions on the ground that the constitutional changes they effected deprived individuals of important state constitutional protections they previously enjoyed and left courts unable to fully protect such rights.” (Maj. opn., ante, at p. 442, italics added.) Certainly the initiatives at issue in Frierson and Lance W. made “important substantive changes” in the rights of criminal defendants. Contrary to the italicized portion of the statement, however, the challengers in those cases contended the initiatives amounted to revisions not because of their effect on those rights, but instead because of their effect on the power of the judicial branch. The defendant in Frierson argued that a 1977 initiative reinstating the death penalty was a constitutional revision because it impaired the judiciary‘s power to review statutes for constitutionality.2 Amici curiae, who raised the issue in Lance W., argued that a 1982 initiative limiting the exclusionary rule in criminal proceedings was a revision because it impaired the judicial function of fashioning appropriate remedies for violations of constitutional rights.3 Those are the arguments we
The history of our California Constitution belies any suggestion that the drafters envisioned or would have approved a rule, such as that announced today, that affords governmental structure and organization more protection from casual amendment than civil liberties. The delegates to the 1849 constitutional convention recognized that “government was instituted for the protection of minorities,” and that “[t]he majority of any community is the party to be governed; the restrictions of law are interposed between them and the weaker party; they are to be restrained from infringing upon the rights of the minority.” (Browne, Rep. of the Debates in Convention of Cal. on Formation of State Const. (1850) p. 22 [remarks of delegate William Gwin].)5 Similarly, the delegates to the second constitutional convention in 1878-1879
The Constitution does not define the terms “revision” and “amendment” (
The majority opinion also reflects confusion about the meaning of “scope” in this context. A revision can inhere in a change of sufficient scope, not just to the whole Constitution, but also to one of its foundational principles. The procedural requirements for constitutional revisions were intended to preserve both “the substantial entirety of the instrument” and “the underlying principles upon which it rests. . . .” (Livermore v. Waite, supra, 102 Cal. 113, 118, italics added.) Our decisions embody this understanding. The provision of Proposition 115 (Primary Elec. (June 5, 1990)) that we struck down as a qualitative revision in Raven v. Deukmejian (1990) 52 Cal.3d 336 affected not the whole Constitution but only a single principle—judicial independence. But the scope of the measure‘s “attack on state court authority” was “broad.” (Raven v. Deukmejian, supra, at p. 355.) In contrast, we upheld amendments that impacted judicial power less extensivеly in In re Lance W., supra, 37 Cal.3d 873, 891, and People v. Frierson, supra, 25 Cal.3d 142, 186-187. Accordingly, scope is the important point. But just as an amendment of sufficient scope to a single principle as important as judicial power can be a revision, even though it leaves the remainder of the Constitution untouched, so too, in my view, can be an amendment of sufficient scope to a foundational principle of individual liberty in our free society, such as equal protection.6
The question before us then, as I would pose it, is whether Proposition 8 accomplishes a change of sufficient scope in a foundational principle of individual liberty to amount to a constitutional revision. Certainly Proposition 8 affects the principle of equal protection. The initiative, just like the identically worded statute (
In the Marriage Cases, supra, 43 Cal.4th 757, this court determined that the California Constitution requires full equality for same-sex and opposite-sex couples. Proposition 8, as construed by this court, reflects the voters’ rejection of one aspect of the Marriage Cases—our conclusion that the principle of equal protection requires the state to apply the term “marriage” to legally recognized same-sex unions. (43 Cal.4th at pp. 855-856.) Historically, this conclusion was new. The right of same-sex couples to have the nomenclature of marriage applied to their unions had been only recently and rarely recognized in American constitutional law, and it ran counter to a common understanding of the term. Even today this conclusion is disputed, both here and throughout the United States.
Disagreement over a single, newly recognized, contested application of a general principle does not mean the principle is dead. Equal protection‘s continuing vitality in the present context is shown by this court‘s unanimous reaffirmation of its conclusions in the Marriage Cases, supra, 43 Cal.4th 757, that laws discriminating on the basis of sexual orientation are subject to strict scrutiny, and that—excepting the name—same-sex couples are entitled to enjoy all of the rights of marriage. Accordingly, all three branches of state government continue to have the duty, within their respective spheres of operation, today as before the passage of Proposition 8, to eliminate the remaining important differences between marriage and domestic partnership, both in substance7 and
MORENO, J., Concurring and Dissenting.—
“[T]he ‘absolute equality of all’ persons before the law [is] ‘the very foundation principle of our government.‘” (Varnum v. Brien (Iowa 2009) 763 N.W.2d 862, 877.)
In In re Marriage Cases (2008) 43 Cal.4th 757, 855-856 (Marriage Cases), we held that denying same-sex couples the right to marry denies them equal protection of the law. Proposition 8 partially abrogated that decision by amending the California Constitution to deny same-sex couples fully equal treatment by adding the words: “Only marriage between a man and a woman is valid or recognized in California.”
The question before us is not whether the language inserted into the California Constitution by Proposition 8 discriminates against same-sex couples and denies them equal protection of the law; we already decided in the Marriage Cases that it does. The question before us today is whether such a change to one of the core values upon which our state Constitution is founded can be accomplished by amending the Constitution through an initiative measure placed upon the ballot by the signatures of 8 percent of the number of persons who voted in the last gubernatorial election and passed by a simple majority of the voters. (
For reasons elaborated below, I conclude that requiring discrimination against a minority group on the basis of a suspect classification strikes at the
Equal protection principles lie at the core of the
Ensuring equal protection prevents “governmental decisionmakers from treating differently persons who are in all relevant respects alike. [Citation.]” (Nordlinger v. Hahn (1992) 505 U.S. 1, 10 [120 L.Ed.2d 1, 112 S.Ct. 2326].) The doctrine‘s purpose is to protect “against intentional and arbitrary discrimination.” (Sunday Lake Iron Co. v. Wakefield (1918) 247 U.S. 350, 352
Of particular importance for this case is that discrimination against disfavored minorities is presumptively suspect under the equal protection clause. As we affirmed in the Marriage Cases, supra, 43 Cal.4th at page 842, and as the majority reaffirms today (maj. opn., ante, at p. 411), sexual orientation is such a suspect classification. Under our state equal protection jurisprudence, as in federal law, laws that involve suspect classifications or touch upon fundamental interests are subject to strict scrutiny, meaning that “‘the state bears the burden of establishing not only that it has a compelling interest which justifies the law but that the distinctions drawn by the law are necessary to further its purpose.’ [Citation.]” (Marriage Cases, supra, 43 Cal.4th at p. 832, italics omitted.)
The equal protection clause is therefore, by its nature, inherently countermajoritarian. As a logical matter, it cannot depend on the will of the majority for its enforcement, for it is the will of the majority against which the equal protection clause is designed to protect. Rather, the enforcement of the equal protection clause is especially dependent on “the power of the courts to test legislative and executive acts by the light of constitutional mandate and in particular to preserve constitutional rights, whether of individual or minority, from obliteration by the majority.” (Bixby v. Pierno (1971) 4 Cal.3d 130, 141 [93 Cal.Rptr. 234, 481 P.2d 242].)
California‘s equal protection doctrine has not been confined to that of federal
The majority upholds Proposition 8 by reasoning that it does not “fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated” in the Marriage Cases, because it merely “carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term ‘marriage’ for the union of opposite-sex couples....” (Maj. opn., ante, at p. 388.) The majority protests that it does not mean to “diminish or minimize the significance that the official designation of ‘marriage’ holds” (ibid.), but that is exactly the effect of its decision.
Denying the designation of marriage to same-sex couples cannot fairly be described as a “narrow” or “limited” exception to the requirement of equal protection; the passionate public debate over whether same-sex couples should be allowed to marry, even in a state that offers largely equivalent substantive rights through the alternative of domestic partnership, belies such a description. “[T]he constitutional right to marry . . . has been recognized as one of the basic, inalienable civil rights guaranteed to an individual by the
We recognized in the Marriage Cases that “draw[ing] a distinction between the name for the official family relationship of opposite-sex couples (marriage) and that for same-sex couples (domestic partnership)” (Marriage Cases, supra, 43 Cal.4th at p. 782) “impinges upon a same-sex couple‘s fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple” (id. at p. 784). Denying same-sex couples the right to call their relationships marriages treats them as “‘second-class citizens.‘” (Id. at p. 785.) As we observed in the Marriage Cases, “there exists a substantial risk that a judicial decision upholding the differential treatment of opposite-sex and same-sex couples would be understood as validating a more general proposition that our state by now has repudiated: that it is permissible, under the law, for society to
Describing the effect of Proposition 8 as narrow and limited fails to acknowledge the significance of the discrimination it requires. But even a narrow and limited exception to the promise of full equality strikes at the core of, and thus fundamentally alters, the guarantee of equal treatment that has pervaded the
There is no doubt that the ultimate authority over the content of the
We have long recognized the importance of this distinction between revising and amending the Constitution. In Livermore v. Waite (1894) 102 Cal. 113 [36 P. 424], which was decided before the initiative process was created in 1911, we observed that, at that time, there were “two methods by which changes may be effected in [the California Constitution], one by a convention of delegates chosen by the people for the express purpose of revising the entire instrument, and the other through the adoption by the people of propositions for specific amendments that have been previously submitted to it by two-thirds of the members of each branch of the legislature.” (Id. at p. 117.) We noted that there was a basic difference between the process of revising the Constitution by means of the constitutional convention and amending the Constitution. “Under the first of these methods [revision] the entire sovereignty of the people is represented in the convention. The character and extent of a constitution that may be framed by that body is freed from any limitations other than those contained in the constitution of the United States.” (Ibid.) The power of amendment, however, was much more limited: “The power of the legislature to initiate any change in the existing organic law is, however, of greatly less extent, and, being a delegated power, is to be strictly construed under the limitations by which it has been conferred. . . . The legislature is not authorized to assume the function of a constitutional convention, and propose for adoption by the people a revision of the entire constitution under the form of an amendment . . . .” (Id. at pp. 117–118.)
We took care in Livermore to explain the reason for this difference between the broad power of revision and the greatly limited power of amendment: “The very term ‘constitution’ implies an instrument of a permanent and abiding nature, and the provisions contained therein for its revision indicate the will of the people that the underlying principles upon which it rests, as well as the substantial entirety of the instrument, shall be of a like permanent and abiding nature. On the other hand, the significance of the term ‘amendment’ implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.” (Livermore v. Waite, supra, 102 Cal. at pp. 118–119.)3
The emergence of the initiative process did nothing to alter the distinction between amending and revising the Constitution. The initiative process was
Although this initiative process was thereby instituted as a remedy for government corruption, and to free legislation from the influence of powerful special interests and the Legislature‘s own self-serving inertia, there is no indication that this process was intended to prevent courts from performing their traditional constitutional function of protecting persecuted minorities from the majority will. There is a fundamental difference between preventing politically powerful minorities from unduly influencing legislative and judicial decisions on the one hand, and preventing courts from protecting the rights of disfavored minorities unable to obtain equal rights through the usual majoritarian processes on the other. There is no indication that the Progressives who framed the initiative process were insensible to that distinction, or that they sought to abolish the judiciary‘s role as the guardian of minorities’ fundamental rights.
The initiative process was itself initiated by a 1911 ballot proposition that amended
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.
The majority concludes that in order to constitute a revision, a change in the Constitution must effect a “fundamental change in the basic governmental plan or framework established by the preexisting provisions of the California Constitution—that is ‘in [the government‘s] fundamental structure or the foundational powers of its branches.’ [Citation.]” (Maj. opn., ante, at p. 441.) 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.
In Brosnahan v. Brown (1982) 32 Cal.3d 236, 243 [186 Cal.Rptr. 30, 651 P.2d 274] (Brosnahan), we considered the validity of the 1982 Proposition 8 which, among other things, amended thе Constitution by adding
In its concluding statement, the Brosnahan court substituted the word “framework” for the word “plan” in restating the rule in Amador Valley that a
The idea that the electorate may, by amendment, significantly curtail the constitutional rights of minorities is not, contrary to the majority, squarely supported by case law. Even in the area of criminal law and procedure, in which the initiative process has perhaps made its boldest forays into the field of constitutional rights, this court has stopped short of approving the kind of basic constitutional change at issue in the present case. In In re Lance W. (1985) 37 Cal.3d 873, 885 [210 Cal.Rptr. 631, 694 P.2d 744], this court considered the 1982 Proposition 8 and rejected the argument that the addition of
In upholding
Our decision in Lance W. did state, in dicta and without explanation or citation to authority: “The people could by amendment of the Constitution
It is true that Lance W. stands for the proposition that initiative amendments may scale back judicial remedies that implement the protection of constitutional rights, but the majority makes the far broader assertion that “the current Proposition 8 is by no means the first instance in which the
Nor is Raven v. Deukmejian (1990) 52 Cal.3d 336, 341–343 [276 Cal.Rptr. 326, 801 P.2d 1077], the one case to invalidate a portion of an initiative on the grounds that it constituted a qualitative revision, contrary to my position. In Raven, this court invalidated the portion of Proposition 115 that amended the
Our decision in Raven addressed whether a structural change to the Constitution was a revision, but nothing in our opinion suggests that only a structural change can constitute a revision. To the contrary, our recognition in Raven that altering fundamental rights embodied in the Constitution could “substantially alter the substance and integrity of the state Constitution as a document of independent force and effect” suggests just the opposite.
The majority‘s reliance upon the lead opinion in People v. Frierson (1979) 25 Cal.3d 142 [158 Cal.Rptr. 281, 599 P.2d 587] (Frierson) is also misguided. That opinion stated the view of only three justices that the 1972 initiative measure that added a provision to the
In a footnote, the majority acknowledges that the lead opinion in Frierson “was signed by only three justices; four justices declined to join in the opinion‘s discussion” upon which the majority now relies. (Maj. opn., ante, at p. 430, fn. 21.) Nevertheless, the majority attempts to justify its reliance upon this portion of the lead opinion in Frierson by noting that a majority of the court in People v. Jackson (1980) 28 Cal.3d 264, 315 [168 Cal.Rptr. 603, 618 P.2d 149], later upheld the validity of the 1977 death penalty law, saying that “‘[m]ost of the arguments advanced by defendant were discussed at considerable length in [Frierson] and we do not repeat them here.‘” (Maj. opn., ante, at p. 430, fn. 21.) This cryptic reference to the lead opinion in Frierson does not establish that the court in Jackson considered whether the 1972 initiative was a constitutional amendment or a revision, and thus does not serve to transform the views of three justices in Frierson into a holding of a majority of this court.7
In sum, none of our prior cases discussed above, nor any other case discussed in the majority opinion, holds that a modification of the
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. Counsel for interveners candidly admitted at oral argument that, in his view, the equal protection clause of the
The majority wisely does not embrace this extreme view, but it does not explain how it avoids it, simply stating that “there is no need for us to consider whether a measure that actually deprives a minority group of the entire protection of a fundamental constitutional right or, even more sweepingly, leaves such a group vulnerable to public or private discrimination in all areas without legal recourse [citation], would constitute a constitutional revision . . . .” (Maj. opn., ante, at p. 446.) But the possible basis for limiting the broad rule adopted by the majority is not apparent. If a change in the Constitution that leaves a minority group vulnerable to discrimination in all
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. As petitioners point out, “imagine if Perez v. Sharp, 32 Cal.2d 711 [198 P.2d 17] (1948), striking down California‘s ban on interracial marriages, had been decided on state constitutional grounds rather than federal constitutional grounds. And imagine if a bare majority had attempted to overturn that landmark ruling by enshrining the ban into the Constitution.” Other equally unattractive hypotheticals suggest themselves. Under the majority‘s reasoning, California‘s voters could permissibly amend the state Constitution to limit Catholics’ right to freely exercise their religious beliefs (
The majority criticizes petitioners’ position because “under petitioners’ approach, the people would have the ability—through the initiative process—to extend a constitutional right to a disfavored grоup that had not previously enjoyed that right, but the people would lack the power to undo or repeal that very same extension of rights through their exercise of the identical initiative process.” (Maj. opn., ante, at p. 451.) Whether or not the above accurately characterizes petitioners’ position, it does not accurately describe mine. The scenario of a majority of the electorate giving and then taking away rights does not implicate my objections in the present case: that Proposition 8 entirely undermines the countermajoritarian nature of the equal protection clause and usurps the judiciary‘s special constitutional role as protector of minority rights. Therefore, without deciding cases not before us, my reasons for concluding that Proposition 8 attempts a constitutional change that can only be accomplished through revision do not apply to a situation in which an electoral majority grants and then repeals rights.
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. As the Supreme Court of Iowa recently observed: “[G]ay and lesbian people as a group have long been the victim of purposeful and invidious discrimination because of their sexual orientation. The long and painful history of discrimination against gay and lesbian persons is epitomized by the criminalization of homosexual conduct in many parts of this country until very recently. [Citation.] Additionally, only a few years ago persons identified as homosexual were dismissed from military service regardless of past dedication and demonstrated valor. Public employees identified as gay or lesbian have been thought to pose security risks due to a perceived risk of extortion resulting from a threat of public exposure. School-yard bullies have psychologically ground children with apparently gay or lesbian sexual orientation in the cruel mortar and pestle of
Proposition 8 represents an unprecedented instance of a majority of voters altering the meaning of the equal protection clause by modifying the
This could not have been the intent of those who devised and enacted the initiative process. In my view, the aim of Proposition 8 and all similar initiative measures that seek to alter the
The petition of petitioners Karen L. Strauss et al., and City and County of San Francisco for a rehearing was denied June 17, 2009, and the opinion was modified to read as printed above.
Notes
In Massachusetts—the other state in which a statute limiting marriage to opposite-sex couples has been found unconstitutional under the state constitution (see Goodridge v. Department of Public Health (2003) 440 Mass. 309)—the state constitution may in some circumstances be amended through the initiative process, but in that state, after an initiative petition has been signed by the requisite number of electors, the proposed constitutional amendment must be approved by one-fourth of the state legislators in two successive legislative sessions before it can be placed on the ballot. (See, post, at p. 462, fn. 40.)
In Vermont, where the state legislature recently amended that state‘s marriage statute (over a gubernatorial veto) to permit same-sex couples to marry (Vt. Act No. 3, S. 115 (2009-2010 Legis. Sess.) eff. Sept. 1, 2009), the state constitution may not be amended through the initiative process, and an amendment proposed by the legislature must be approved in two successive legislative sessions before it can be submitted to the voters for ratification. (
In Maine, where the state legislature also recently amended that state‘s marriage statute to permit same-sex couples to marry (Me. Pub.L. 2009, ch. 82 (124th Leg., 1st Sess.) enacted May 6, 2009), the state constitution similarly may not be amended through the initiative process. In that state, an amendment to the state constitution may be proposed by a two-thirds vote of both houses of the legislature, and becomes effective if approved by a majority of voters at the next biennial statewide election. (
Finally, in New Hampshire, where the state legislature even more recently enacted similar legislation permitting same-sex couples to marry (N.H. 2009 chs. 59-61 (161st Sess. Gen. Ct.) enacted June 3, 2009 [H.B. Nos. 436, 310 & 73]), the state constitution also may not be amended through the initiative process. An amendment to the New Hampshire Constitution may be proposed either by three-fifths of the entire membership of each house of the legislature or by three-fifths of the entire membership of a constitutional convention, and in either case a proposed amendment becomes effective only if approved by a two-thirds vote of the electorate at a statewide election. (
Similarly, we concluded in In re Lance W., supra, 37 Cal.3d 873, that “[t]he restriction on judicial authority to fashion nonstatutory rules of evidence or procedure governing admission of unlawfully seized evidence does not, either qualitatively or quantitatively, ‘accomplish such far reaching changes in the nature of [judicial authority] as to amount to a revision’ of the Constitution.” (Id., at p. 891, second brackets in original, italics added.) Likewise, “[t]he adoption of section [28, subdivision (d), of article I] which affects only one incident of that guarantee of freedom from unlawful search and seizure, a judicially created remedy for violation of the guarantee, cannot be considered such a sweeping change either in the distribution of powers made in the organic document or in the powers which it vests in the judicial branch as to constitute a revision of the Constitution within the contemplation of article XVIII.” (In re Lance W., supra, at p. 892, italics added.)
Similarly, amicus curiae California Attorneys for Criminal Justice argued that to interpret the initiative “as nullifying judicial power to exclude unconstitutionally seized evidence [was] an invitation to eviscerate the inherent power of a coequal branch of government.” (Italics added.) In Californians for an Open Primary v. McPherson (2006) 38 Cal.4th 735 [43 Cal.Rptr.3d 315, 134 P.3d 299] (Californians for an Open Primary), I attempted in my concurring opinion to explain why the Legislature was subject to the requirement of
Similarly,
In addition,
Finally, as discussed above (see, ante, at p. 448), the state equal protection clause set forth in