Lead Opinion
Opinion
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)
In In re Marriage Cases (2008)
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,
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)
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,
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,
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 been 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., Mass. Const., amend, art. XLVIII, pt. II, § 2 [“No proposition inconsistent with any one of the following rights of the individual, as at present declared in the declaration of rights, shall be the subject of an initiative . . . petition: [listing a number of rights, including the rights to just compensation, jury trial, and protection from unreasonable search, and the freedoms of speech, assembly, and of the press]”]; Miss. Const., art. 15, § 273, subd. (5) [“The initiative process shall not be used: [][] (a) For the proposal, modification or repeal of any portion of
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,
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 article I, section 1 of that Constitution are not subject to “abrogation” by constitutional amendment without a compelling state interest. The Attorney General’s contention is flawed, however, in part because, like petitioners’ claims, it rests inaccurately upon an overstatement of the effect of Proposition 8 on both the fundamental constitutional right of privacy guaranteed by article I, section 1, and on the due process and equal protection guarantees of article I, section 7. As explained below, Proposition 8 does not abrogate any of these state constitutional rights, but instead carves out a narrow exception applicable only to access to the designation of the term “marriage” but not to any other of “the core set of basic substantive legal rights and attributes traditionally associated with marriage . . .” (Marriage Cases, supra,
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 article I, section 7.5.
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.
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,
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)
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, Family Code section 308.5.
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,
After we filed our decision in Lockyer, supra,
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.
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,
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 marriаge, 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 article XVIII, section 4 of the California Constitution, the measure took effect on November 5, 2008.
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,
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,
B
The main contention raised by the petitioners in the Marriage Cases, supra,
Analyzing, in the Marriage Cases, supra,
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 “[bjecause 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 article I, section 1, and of the liberty interest protected by the due process clause of article I, section 7, ... the right to marry—like the right to establish a home and raise children—has independent substantive content, and cannot properly be understood as simply the right to enter into such a relationship if (but only if) the Legislature chooses to establish and retain it.” (Marriage Cases, supra, 43 Cal.4th at pp. 818-819.)
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,
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,
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 еmphatic terms its holding on this aspect of the case: “[W]e conclude that the right to marry, as embodied in article I, sections 1 and 7 of the California Constitution, guarantees same-sex couples the same substantive constitutional rights as opposite-sex couples to choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage.” (Id. at p. 829, italics added.)
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,
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 “[wjhether 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,
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,
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,
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 Family Code sections 300 and 308.5 were unconstitutional insofar as they excluded same-sex couples from the designation of marriage. (43 Cal.4th at pp. 848-856.)
E
Finally, in determining the appropriate remedy in light of the constitutional conclusion it reached, the majority opinion held that the language of Family Code section 300 limiting the designation of marriage to a union “between a man and a woman” must be stricken from the statute and the remaining statutory language must be understood as making the designation of marriage available to both opposite-sex and same-sex couples, and that the provisions of section 308.5 could have no constitutionally permissible effect and could not stand. The opinion directed that a writ of mandate issue, instructing state officials to take all steps necessary to ensure that local officials throughout the
F
Having carefully reviewed the majority opinion in the Marriage Cases, supra,
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 article I, section 7.5—the section added by Proposition 8 to the California Constitution—properly must be interpreted to apply both to marriages performed in California and to marriages performed in other jurisdictions.
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,
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,
The case of Bowens v. Superior Court (1991)
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,
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 Family Code section 308.5, the statutory provision embodied in Proposition 22. Prior to the drafting and adoption of Proposition 8, the identical language (“Only marriage between a man and a woman is valid or recognized in California”)—when used in Family Code section 308.5—was interpreted in Knight v. Superior Court (2005)
In addition to the language of Proposition 8 itself and the preexisting judicial interpretation of that language in the decision in Knight, supra,
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,
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.”
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,
3
Third, Proposition 8 also has a similarly limited effect on the holdings of the majority opinion in the Marriage Cases, supra,
4
In sum, although Proposition 8 changes the state Constitution, as interpreted in the majority opinion in the Marriage Cases, supra,
Ill
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,
A
Article II, section 1 of the California Constitution states in full: “All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.” This provision originated in one of the initial sections of the Declaration of Rights contained in California’s first
The provisions of the California Constitution relating to amending and revising the Constitution currently are set forth principally in article XVIII. Section 1 of article XVIII provides in relevant part that “[t]he Legislature by rollcall vote entered in the journal, two-thirds of the membership of each house concurring, may propose an amendment or revision of the Constitution and in the same manner may amend or withdraw its proposal.” (Italics added.) Section 2 provides in relevant part: “The Legislature by rollcall vote entered in the journal, two-thirds of the membership of each house concurring, may submit at a general election the question whether to call a convention to revise the Constitution. If the majority vote yes on that question, within 6 months the Legislature shall provide for the convention.” (Italics added.) Section 3 provides: “The electors may amend the Constitution by initiative." (Italics added.) Finally, section 4 provides in relevant part: “A proposed amendment or revision shall be submitted to the electors and if approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise.” (Italics added.)
As already noted, under these constitutional provisions an amendment to the California Constitution may be proposed to thе 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); Bums, 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]ray 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 in 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.
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)
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,
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)
As we explained in Associated Home Builders, supra,
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,
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.” (
From this description of the measure at issue in McFadden, supra,
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,
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 California Constitution has authorized a constitutional revision to be proposed for submission to the voters either by a constitutional convention or by direct submission by the Legislature, permitting the Legislature to propose “coordinated broad changes to renovate outdated sections and articles” in the Constitution. (See also Californians for an Open Primary, supra,
H
The latest change to the provisions of the California Constitution relating to amendment and revision of the Constitution occurred in 1970, when the provisions of article XVIII were substantially edited, reorganized, and set forth in the four-section format described, ante, at page 413. These changes were submitted to and approved by the voters as Proposition 16 at the November 3, 1970 election, but they reflect no substantive modification of the amendment/revision dichotomy or of the means by which either constitutional amendments or constitutional revisions may be proposed for submission to the voters.
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 California Constitution, has been challenged on the ground that the measure represented a constitutional revision rather than a constitutional amendment and thus could not properly be adopted through the initiative
1
Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, supra,
After relating the pertinent provisions of article XVIII, the court in Amador quoted from and discussed relevant portions of the Livermore and McFadden decisions, and then set forth the general mode of analysis that, as we shall see, has continued to be followed by our subsequent decisions. We stated in Amador in this regard: “Taken together our Livermore and McFadden decisions mandate that our analysis in determining whether a particular constitutional enactment is a revision or an amendment must be both quantitative and qualitative in nature. For example, an enactment which is so extensive in its provisions as to change directly the ‘substantial entirety’ of the Constitution by the deletion or alteration of numerous existing provisions may well constitute a revision thereof. However, 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. In illustration, the parties herein appear to agree that an 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.” (Amador, supra,
In applying this analysis to Proposition 13, the court in Amador, supra,
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,
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,
In the decision in Anderson, supra,
In Frierson, supra,
3
Three years after Frierson, supra,
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.” (
In evaluating the latter claim, the court in Brosnahan, supra,
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,
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,
4
A few years after the decision in Brosnahan, supra,
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 tibie federal Constitution. The defendant in Lance W. argued that because section 28(d) did not refer specifically to article I, section 13 (the state constitutional search-and-seizure provision) or to article I, section 24 (the provision confirming that rights guaranteed by the state Constitution are not dependent on those guaranteed by the United States Constitution), section 28(d) should not be interpreted as having repealed or altered the state constitutional exclusionary rule. In analyzing this point, the court in Lance W. first agreed with the defendant “that [the 1982] Proposition 8 did not repeal either section 13 or section 24 of article I” and that “[t]he substantive scope of both provisions remains unaffected by [the 1982] Proposition 8. What would have been an unlawful search or seizure in this state before the passage of that initiative would be unlawful today, and this is so even if it would pass muster under the federal Constitution.” (Lance W., supra,
After determining that section 28(d) properly should be interpreted as having abrogated the state constitutional exclusionary rule, the court in Lance W., supra,
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,
The court in Lance W., supra,
5
Our court next addressed the amendment/revision issue in Raven v. Deukmejian, supra,
Proposition 115 made a significant number of distinct changes to the California Constitution. The measure (1) added a new section 14.1 to article I, providing that “[i]f a felony is prosecuted by indictment, there shall be no postindictment preliminary hearing”; (2) amended article I, section 24 to provide that numerous state constitutional provisions granting rights to criminal defendants shall not be construed to afford greater rights than those afforded by analogous provisions of the United States Constitution (this is the part of Prop. 115 that the court found embodied a constitutional revision and that we quote and discuss below); (3) added a new section 29 to article I, providing that “[i]n a criminal case, the people of the State of California have the right to due process of law and to a speedy and public trial”; (4) added a new section 30, subdivision (a), to article I, providing that “[t]his Constitution shall not be construed by the courts to prohibit the joining of criminal cases as prescribed by the Legislature or by the people through the initiative process”; (5) added a new section 30, subdivision (b), to article I, providing that “hearsay evidence shall be admissible at preliminary hearings”; (6) added a new section 30, subdivision (c), to article I, providing that “discovery in criminal cases shall be reciprocal in nature”; and (7) added and amended a variety of criminal statutory provisions, making procedural changes and altering the substance of a variety of criminal offenses, including the provisions relating to murder and to the death penalty.
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,
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,
The court then proceeded in Raven, supra,
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 “[quantitatively, 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.] [f] 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 сourt in Raven observed
In the course of its discussion, the court in Raven contrasted the proposed change to article I, section 24, with the substantial changes in the state constitutional rights of criminal defendants that the court previously had found to constitute constitutional amendments in Frierson, supra,
After concluding that the changes made by Proposition 115 to article I, section 24, constituted an invalid revision of the California Constitution, the court in Raven determined that this provision’s invalidity “does not affect the remaining provisions of Proposition 115, which are clearly severable from the invalid portion.” (Raven, supra,
6
One year after Raven, supra,
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,
The court in Legislature v. Eu, supra,
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,
Accordingly, we concluded in Legislature v. Eu, supra,
7
Most recently, in Professional Engineers in California Government v. Kempton (2007)
J
Having extensively reviewed (1) the origin and history of the distinction drawn in the California Constitution between constitutional amendments and constitutional revisions throughout our state’s existence (ante, at pp. 412-426), and (2) the numerous decisions that have applied this distinction to a wide variety of measures that have added or altered provisions of our state Constitution (ante, at pp. 426-440), we now evaluate petitioners’ contention that the measure before us today—the current Proposition 8—should be considered a constitutional revision rather than a constitutional amendment.
As already noted, Proposition 8 adds a single section—section 7.5—to article I of the California Constitution, a section that provides, in its entirety, that “Only marriage between a man and a woman is valid or recognized in California.” Pursuant to the analysis prescribed in our past decisions, we examine “both the quantitative and qualitative effects of the measure on our constitutional scheme.” (Raven, supra,
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 the privacy, due process, and equal protection clauses contained in those two sections as interpreted in the majority opinion in the Marriage Cases, supra,
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 California Constitution—that is, “in [the government’s] fundamental structure or the foundational powers of its branches.” (Legislature v. Eu, supra,
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,
In Frierson, supra,
The court’s analysis in Lance W., supra,
Furthermore, as we have seen, in Legislature v. Eu, supra,
Although petitioners seize upon isolated passages in a few decisions as assertedly supporting their position that a change other than a modification
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,
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,
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).
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)
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. (Cal. Const., former art. II, § 1 [as amended at Nov. 6, 1894 election].) This provision of the California Constitution remained in effect until 1970, when this court struck it down as a violation of the federal Constitution. (See Castro v. State of California (1970)
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)
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,
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,
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,
In the course of their argument, petitioners alsо rely upon a portion of the passage in the 1894 decision in Livermore, supra,
Although we reject petitioners’ contention that the enactment of Proposition 8 was improper 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.
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.” (Cal. Const., former art. IV, § 1, as adopted Oct. 10, 1911, now art. II, § 8, subd. (a), and art. XVIII, § 3.) The provision placed no subject matter limitation on the initiative process and did not exempt any provision of the existing Constitution from amendment through the initiative process. During the nearly 100 years since adoption of the statewide initiative process in California, a number of constitutional amendments have been adopted that impose some restrictions on the initiative process in this state (see Cal. Const., art. II, § 8, subds. (d), (e), (f)),
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)
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—reprеsents 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.
In analyzing the distinction drawn in the Alaska Constitution between constitutional amendments and constitutional revisions, the court in Bess v. Ulmer, supra,
As the foregoing description reveals, in Bess v. Ulmer, supra,
The Oregon Court of Appeals reached a similar conclusion in Martinez v. Kulongoski (2008) 220 Ore.App. 142 [
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)
As already noted, unlike the California Constitution, the Massachusetts Constitution places specific substantive limits on the matters that mаy be proposed by an initiative petition. (See Mass. Const., amend. art. XLVIII, pt. II, § 2, quoted in part, ante, at p. 455, fn. 31.) In Schulman, the limited issue considered by the court was whether the initiative petition in question was precluded by the portion of amendment article XLVIII, part II, section 2 of the Massachusetts Constitution stating that “[n]o measure that relates to ... the reversal of a judicial decision . . . shall be proposed by an initiative
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,
As illustrated by the decision of the Massachusetts Supreme Judicial Court in Schulman, supra,
Finally, the very recent decision of the Iowa Supreme Court in Varnum v. Brien, supra,
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,
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)
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)
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 article I, section 1 of the California Constitution characterizes certain rights as “inalienable,” the
The Attorney General’s argument is fundamentally flawed on a number of levels. First, as we 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 article I, section 1 of the California Constitution. The language of the new constitutional section added by Proposition 8 does not purport to have such a broad reach or effect, and instead properly must be interpreted as simply carving out a limited exception to the reach of the constitutional rights of privacy and due process as explicated in the majority opinion in the Marriage Cases, supra,
Second, contrary to the implication of the Attorney General’s assertion, the circumstance that the rights listed in article I, section 1—and in other sections of the Constitution—are identified as “inalienable” does not signify that such rights are totally exempt from any limitation or restriction. (See also, e.g., art. I, § 28, subd. (f)(1) [“All students and staff of public primary, elementary, junior high and senior high schools . . . have the inalienable right to attend campuses which are safe, secure and peaceful” (italics added)].) This circumstance is apparent from even a cursory examination of the list of inalienable rights embodied in article I, section 1. Article I, section 1 provides in full; “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” It is undisputed, of course, that an individual’s right to “acquir[e], possess[], and protect[] property”—notwithstanding its “inalienable” status—long has been recognized as subject to reasonable regulation and limitation, and this is so even in the absence of a constitutional amendment explicitly limiting this right. (See, e.g., In re Weisberg (1932) 215
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 article I, section 1 refers (see 1849 Debates, supra, pp. 33-34), and California’s 1849 Constitution enshrined this right as an integral part of the original Declaration of Rights in former article I, section 2, which provided: “All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people; and they have the right to alter or reform the same, whenever the public good may require it.” (Italics added.)
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 article I, section 1—or any other section of the Constitution— from the amendment process set forth in article XVIII. As we have noted above, a number of constitutions in other jurisdictions do contain provisions excluding designated provisions of those constitutions from amendment. (See, ante, at pp. 454-455 & fn. 31.) The current California Constitution contains no restriction of this kind, however, and in the absence of such an explicit limitation we would exceed the well-established and time-honored limits of the judicial role were we to take it upon ourselves to fashion such a restriction upon the present and future right of the people to determine the content of the Constitution that governs our state.
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)
Our decision in Evangelatos, supra,
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)
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,
To support their claim that extrinsic sources demonstrate that the voters must have intended a retroactive 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,
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)
Here, same-sex couples who married after the decision in the Marriage Cases, supra,
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.
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.
Notes
In contrast to the process by which the California Constitution may be amended, in both Connecticut and Iowa—two states in which supreme courts recently have held that a statute limiting marriage to opposite-sex couples violates the provisions of their respective state constitution (see Kerrigan v. Commissioner of Public Health (2008)
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)
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
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. (Me. Const., art. X, § 4.)
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. (N.H. Const., pt. II, art. 100.)
Under article II, section 8, subdivision (b) of the California Constitution, an initiative petition that proposes the adoption of a statutory provision must be signed by electors “equal in number to [at least] 5 percent... of the votes [cast] for all candidates for Governor at the last gubernatorial election,” whereas an initiative petition that proposes the adoption of a constitutional amendment must be signed by a number of voters equal to at least 8 percent of the votes cast for all candidates for Governor at the last gubernatorial election.
Although the initiative measure was not designated Proposition 8 until after the Secretary of State certified that the measure had qualified for the ballot, for convenience we shall describe it as Proposition 8 even when referring to its existence prior to the time it was so designated.
The three issues are as follows: (1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (See Cal. Const., art. XVIII, §§ 1-4.) (2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution? (3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?
Although petitioners in each of the three cases before us have filed separate briefs and have framed their arguments in slightly differing terms, the gist of the claims raised by all petitioners is similar. For convenience, when we refer in this opinion to a contention or argument raised by “petitioners,” we are referring to a claim raised in one or more of the briefs filed by petitioners.
In their opposition brief filed in the City and County of San Francisco action (S168078) (in which the City and County of San Francisco and numerous other public entities appear as petitioners), interveners raise a threshold issue, challenging the standing of these public entities to bring such an action. In their reply brief, petitioner public entities vigorously contest interveners’ lack-of-standing claim, relying, among other grounds, on a number of prior cases in which public entities have been permitted to challenge the constitutionality of a state law. (See, e.g., County of San Diego v. San Diego NORML (2008)
The question whether Proposition 8 is prospective or. retroactive—that is, whether it applies only to marriages performed after its effective date or also to marriages performed prior to that date—is addressed in a subsequent part of this opinion. (Post, at pp. 470-474.)
We note in this regard that an alternative, much more sweeping initiative measure— proposing the addition of a new constitutional section that would have provided not only that “[ojnly marriage between one man and one woman is valid or recognized in California,” but also that “[n]either the Legislature nor any court, government institution, government agency, initiative statute, local government, or government official shall . . . bestow statutory rights, incidents, or employee benefits of marriage on unmarried individuals”—was circulated for signature at the same time as Proposition 8, but did not obtain sufficient signatures to qualify for the ballot. (Sect, of State, 2008 Ballot Measure Update as of May 2, 2008, No. 1293 (07-0061) <http://www.sos.ca.gOv/elections/electionsj_050208.htm#failed> [as of May 26, 2009].)
The rebuttal to the argument against Proposition 8 stated in this regard: “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. But Prop. 8 will NOT take away any other rights or benefits of gay couples.” (Nov. 2008 Voter Information Guide, supra, rebuttal to argument against Prop. 8, p. 57, italics added.)
The analysis of Proposition 8 by the Legislative Analyst that also appeared in the ballot pamphlet similarly used the phrase “right to marry” to refer to the right to enter into the relationship designated “marriage.” In describing Proposition 8, the analysis stated: “This measure amends the California Constitution to specify that only marriage between a man and a woman is valid or recognized in California. As a result, notwithstanding the California
In these cases, petitioners have not raised any federal constitutional challenge to Proposition 8.
Article I, section 2 of the 1849 Constitution read in full: “All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people; and they have the right to alter or reform the same, whenever the public good may require it.” When the California Constitution was revised in 1879, this section was carried over, without change, as article I, section 2. In a reorganization of article I approved by the voters at the November 1974 elеction, the language of the section was modified very slightly and moved to article I, section 26. Two years later, in a further reorganization of various constitutional provisions approved by the voters at the June 1976 election, this provision was renumbered as article n, section 1.
Article XVm of the California Constitution provides in full: .
“SEC. 1. The Legislature by rollcall vote entered in the journal, two-thirds of the membership of each house concurring, may propose an amendment or revision of the Constitution and in the same manner may amend or withdraw its proposal. Each amendment shall be so prepared and submitted that it can be voted on separately.
“SEC. 2. The Legislature by rollcall vote entered in the journal, two-thirds of the membership of each house concurring, may submit at a general election the question whether to call a convention to revise the Constitution. If the majority vote yes on that question, within 6 months the Legislature shall provide for the convention. Delegates to a constitutional convention shall be voters elected from districts as nearly as equal in population as may be practicable.
“SEC. 3. The electors may amend the Constitution by initiative.
“SEC. 4. A proposed amendment or revision shall be submitted to the electors and if approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise. If provisions of 2 or more measures approved at the same election conflict, those of the measure receiving the highest affirmative vote shall prevail.”
Article X of the 1849 Constitution, entitled “Mode of Amending and Revising the Constitution,” read in full:
“Section 1. Any amendment, or amendments to this Constitution, may be proposed in the Senate or Assembly; and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment or amendments, shall be entered on their journals, with the yeas and nays taken thereon, and referred to the Legislature then next to be chosen, and shall be published for three months next preceding the time of making such choice. And if, in the Legislature next chosen as aforesaid, such proposed amendment or amendments, shall be agreed to by a majority of all the members elected to each house, then it shall be the duty of the Legislature to submit such proposed amendment or amendments to the people, in such manner, and at such time as the Legislature shall prescribe; and if the people shall approve and ratify such amendment or amendments, by a majority of the electors qualified to vote for members of the Legislature, voting thereon, such amendment or amendments shall become part of the Constitution.
“Section 2. And if, at any time two-thirds of the Senate and Assembly shall think it necessary to revise and change this entire Constitution, they shall recommend to the electors, at the next election for members of the Legislature, to vote for or against the convention; and if it shall appear that a majority of the electors voting at such election have voted in favor of calling a convention, the Legislature shall, at its next session, provide by law for calling a convention, to be holden within six months after the passage of such law; and such convention shall consist of a number of members not less than that of both branches of the Legislature.”
Section 1 of article XVIII of the 1879 Constitution differed from section 1 of article X of the 1849 Constitution in a number of respects. First, although the 1849 Constitution required approval of a proposed amendment by only a majority of the members of each house of the Legislature, the 1879 Constitution required a two-thirds vote of the members of each house, but unlike the 1849 Constitution, which required majorities in two successive legislative sessions to approve the proposed amendment or amendments, the 1879 Constitution permitted a proposed amendment to be submitted to the voters if approved by two-thirds of the members of each chamber in a single legislative session. Second, the 1879 constitutional provision added a new requirement, specifying that if more than one amendment were submitted at the same election, “they shall be so prepared and distinguished, by numbers or otherwise, that each can be voted on separately.” (Id., art. XVIII, § 1; see Californians for an Open Primary v. McPherson (2006)
As adopted in 1879, article XVIII, entitled “Amending and Revising the Constitution,” provided in full:
“Section 1. Any amendment or amendments to this Constitution may be proposed in the Senate or Assembly, and if two-thirds of all the members elected to each of the two Houses shall vote in favor thereof, such proposed amendment or amendments shall be entered in their loumals, with the yeas and nays taken thereon; and it shall be the duty of the Legislature to submit such proposed amendment or amendments to the people in such manner, and at such time, and after such publication as may be deemed expedient. Should more amendments than one be submitted at the same election, they shall be so prepared and distinguished, by numbers or otherwise, that each can be voted on separately. If the people shall approve and ratify such amendment or amendments, or any of them, by a majority of the qualified electors voting thereon such amendment or amendments shall become a part of this Constitution.
“Sec. 2. Whenever 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, and if a majority of the electors voting at such election on the proposition for a Convention shall vote in favor thereof, the Legislature shall, at its next session, provide by law for calling the same. The Convention shall consist of a number of delegates not to exceed that of both branches of the Legislature, who shall be chosen in the same manner, and have the same qualifications, as members of the Legislature. The delegates so elected shall meet within three months after their election at such place as the Legislature may direct. At a special election to be provided for by law, the Constitution that may be agreed upon by such Convention shall be submitted to the people for their ratification or rejection, in such manner as the Convention may determine. The returns at such election shall, in such manner as the Convention shall direct, be certified to the Executive of the State, who shall call to his assistance the Controller, Treasurer and Secretary of State, and compare the returns so certified to him; and it shall be the duty of the Executive to declare, by his proclamation, such Constitution, as may have been ratified by a majority of all thе votes cast at such special election, to be the Constitution of the State of California.”
Although the court in Livermore determined that the measure at issue constituted a constitutional amendment rather than a constitutional revision, the court went on to find that because it contained a proviso specifying that the proposed constitutional provision would not become effective unless a condition subsequent were fulfilled, the measure was not a proper amendment and should not be submitted to the voters. (Livermore, supra, 102 Cal. at pp. 120-124.) This aspect of the Livermore decision was sharply criticized by legal commentary of that era (see Dodd Treatise, supra, at pp. 234-235 [“The California decision [in Livermore v. Waite] is indefensible; it cannot be justified and can be explained only upon the view that the court had determined to prevent the submission of the amendment for removing the capitol, and could find no better reason to present for its action”]), and in any event has no bearing on the present case because the operative effect of Proposition 8 is not dependent upon a condition subsequent.
The ballot pamphlet argument in favor of the measure that proposed adding the initiative and referendum powers to the California Constitution concluded with these words: “Are the people capable of self-government? If they are, this amendment should be adopted. If they are not, this amendment should be defeated.” (Sect. of State, Proposed Amends. to the Const. with Legis. Reasons, Special Elec. (Oct. 10, 1911) Reasons why Sen. Const. Amend. No. 22 should be adopted.) The measure was approved by a three-to-one margin. (See Sect, of State, Statement of the Vote of Cal. Special Elec. (Oct. 10, 1911) p. 5.)
An amendment requiring initiative measures to comply with the single-subject rule was proposed and adopted within months of the McFadden decision (at the election held in Nov. 1948), apparently in response to the measure at issue in McFadden. (See Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, supra,
Pursuant to a revision of article I in 1974, the state constitutional prohibition on cruel or unusual punishment is now set forth in article I, section 17.
The lead opinion in Frierson, supra,
Thus, for example, petitioners rely upon the circumstance that at one point the opinion in Legislature v. Eu, supra,
Similarly, petitioners point to a passage in Raven, supra,
Notwithstanding its rhetorical flourishes, Justice Werdegar’s concurring opinion cannot escape the circumstance that there is no judicial authority to support its proposed reading of our past decisions addressing the distinction between constitutional amendments and constitutional revisions. As we have explained, the standard for determining whether an alteration of the California Constitution amounts to a constitutional revision within the meaning of article XVIII has been repeated and applied in all of the numerous recent California decisions addressing the amendment/revision issue; and a leading state constitutional treatise confirms, in
The right of women to vote in California was adopted by amendment at the November 10, 1911 election. (See Cal. Const., former art. II, § 1 [as аmended in 1911].) The initiative, referendum, and recall powers also were adopted by amendments approved at that same 1911 election. (See Cal. Const., former art. IV, § 1 [as amended in 1911].) The death penalty was reinstated as a valid punishment under the California Constitution by an amendment adopted at the November 7, 1972 election. (See Cal. Const., art. I, § 27.) An explicit right of privacy also was added to the California Constitution by an amendment adopted at the 1972 general election. (Cal. Const., art. I, § 1.) The statewide system of real property taxation was modified
In Hi-Voltage Wire Works, Inc. v. City of San Jose (2000)
Although at one point the court in Mulkey v. Reitman stated that “we do not find it necessary to discuss claims of the unconstitutionality of [Proposition 14] based on California constitutional provisions and law” (Mulkey v. Reitman, supra,
In petitions for rehearing, petitioners point out that the amendment/revision issue was among the numerous issues raised in the briefs filed in another case involving Proposition 14 that was decided one month after Mulkey v. Reitman (Hill v. Miller (1966)
Although Justice Moreno’s concurring and dissenting opinion suggests that the quoted passage indicates that the court in Livermore would have considered a popular, sociological measure to be a permissible constitutional amendment only if the measure were one the Legislature had authority to enact as a statute (see conc. & dis. opn. of Moreno, J., post, at p. 488, fn. 3), it is at least as reasonable to infer that the court in Livermore would have included in the category of appropriate constitutional amendments a popular, sociological measure—such as a measure reinstating the death penalty, or enacting Proposition 8—that, in light of a recent judicial decision, could not be adopted by the Legislature as a statutory enactment and thus, if favored by the requisite number of legislators, logically would need to be submitted to the voters as a constitutional amendment.
There are 26 states that do not have a statewide initiative process: Alabama, Connecticut, Delaware, Georgia, Hawaii, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Minnesota, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, West Virginia, and Wisconsin. (See Council of State Governments, The Book of the States, supra, p. 336.)
Six states authorize statutory but not constitutional initiatives: Alaska (Alaska Const., art. XI, §§ 1, 7), Idaho (Idaho Const., art. III, § 1), Maine (Me. Const., art. IV, pt. 3d, § 18 [indirect initiative only]), Utah (Utah Const., art. VI, § l(2)(a)(i)), Washington (Wn. Const., art. II, § 1), and Wyoming (Wyo. Const., art. 3, § 52(a)).
These states are: Arizona (Ariz. Const., art. 4, pt. 1, § 1(2)), Arkansas (Ark. Const., art. 5, § 1), Colorado (Colo. Const., art. V, § 1(1)), Florida (Fla. Const., art. XI, § 3), Illinois (Ill. Const., art. XIV, § 3), Massachusetts (Mass. Const., amend. art. XLVIII, pt. II, § 2), Michigan (Mich. Const., art. XU, § 2), Mississippi (Miss. Const., art. 15, § 273), Missouri (Mo. Const., art. m, § 49), Montana (Mont. Const., art. XIV, § 9), Nebraska (Neb. Const., art. III, §§ 1, 2), Nevada (Nev. Const., art. 19, § 2), North Dakota (N.D. Const., art. III, §§ 1, 9), Ohio (Ohio Const., art. II, §§ 1, la), Oklahoma (Okla. Const., art. 5, §§ 1, 2), Oregon (Or. Const., art. IV, §§ 1, 2), and South Dakota (S.D. Const., art. XXIII, § 1).
Although each of the foregoing 17 states permits its constitution to be amended through the initiative process, the states differ (1) in the number, percentage, and geographical distribution of electors who must sign an initiative petition to qualify a measure for the ballot, (2) in the additional hurdles (if any) that must be met in order to place the measure on the ballot (such as obtaining a specified percentage of affirmative legislative support in successive legislative sessions (see, post, at p. 462, fn. 40)), and (3) in the percentage of affirmative votes that must be obtained and the number of successive elections that must be held before the proposed amendment will become part of the state constitution. (See Council of State Governments, The Book of the States, supra, p. 14.)
Amendment article XLVIII, part II, section 2 of the Massachusetts Constitution excludes numerous matters from the initiative process. As pertinent to the present case, the section provides: “No measure that relates to religion, religious practices or religious institutions; . . . or to the reversal of a judicial decision . . . shall be proposed by an initiative petition .... HQ • • • HD No proposition inconsistent with any one of the following rights of the individual, as at present declared in the declaration of rights, shall be the subject of an initiative or referendum petition: The right to receive compensation for private property appropriated to public use; the right of access to and protection in courts of justice; the right of trial by jury; protection from unreasonable search, unreasonable bail and the law martial; freedom of the press; freedom of speech; freedom of elections; and the right of peaceable assembly.”
Article 15, section 273, subdivision (5) of the Mississippi Constitution provides in full: “The initiative process shall not be used: [ft] (a) For the proposal, modification, or repeal of any portion of the Bill of Rights of this Constitution; [ft] (b) To amend or repeal any law or any provision of the Constitution relating to the Mississippi Public Employees’ Retirement System; [ft] (c) To amend or repeal the constitutional guarantee that the right of any person to work shall not be denied or abridged on account of membership or nonmembership in any labor union or organization; or [ft] (d) To modify the initiative process for proposing amendments to this Constitution.”
Under the Illinois Constitution, only the legislative article (art. IV) may be amended by the initiative process. (Ill. Const., art. XIV, § 3.)
With regard to the matter of explicit subject matter limitations on the constitutional amending process, we note that article V (the amendment provision) of the United States Constitution—which does not authorize a constitutional amendment to be proposed by initiative—contains two explicit subject matter limitations. The first prohibited any change to be made, prior to the year 1808, to the provisions of the federal Constitution relating to the slave trade and to direct taxes. The second—which is still operative—prohibits any amendment that deprives a state, without its consent, “of its equal suffrage in the Senate.” (U.S. Const., art. V.) There are no other еxplicit limitations to proposed changes to the United States Constitution.
The cited subdivisions of article II, section 8 provide in full:
“(d) An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.
“(e) An initiative measure may not include or exclude any political subdivision of the State from the application or effect of its provisions based upon approval or disapproval of the initiative measure, or based upon the casting of a specified percentage of votes in favor of the measure, by the electors of that political subdivision.
“(f) An initiative measure may not contain alternative or cumulative provisions wherein one or more of those provisions would become law depending upon the casting of a specified percentage of votes for or against the measure.”
In addition to these explicit limitations on the initiative power, article II, section 12, of the California Constitution precludes the adoption of any constitutional amendment—whether proposed by initiative or by the Legislature—“that names any individual to hold any office, or names or identifies any private corporation to perform any function or to have any power or duty____”
The constitutions of 28 states, in addition to California, have been amended over the past decade to include provisions defining marriage as the union of a man and a woman. (Ala. Const., art. I, § 36.03; Alaska Const., art. I, § 25; Ariz. Const., art. 30, § 1; Ark. Const., amend. 83; Colo. Const., art. II, § 31; Fla. Const., art. I, § 27; Ga. Const., art. I, § IV, par. I; Idaho Const., art. III, § 28; Kan. Const., art. 15, § 16; Ky. Const., § 233A; La. Const., art. XII, § 15; Mich. Const., art. I, § 25; Miss. Const., art. 14, § 263A; Mo. Const., art. I, § 33; Mont. Const., art. XIII, § 7; Neb. Const., art. I, § 29; Nev. Const., art. 1, § 21; N.D. Const., art. XI, § 28; Ohio Const., art. XV, § 11; Okla. Const., art. 2, § 35; Or. Const., art. XV, § 5a; S.C. Const., art. XVII, § 15; S.D. Const., art. XXI, § 9; Tenn. Const., art. XI, § 18; Tex. Const., art. I, § 32; Utah Const., art. I, § 29; Va. Const., art. I, § 15A; Wis. Const., art. XIII, § 13.)
The constitutions of at least 17 of these 28 states distinguish between constitutional amendments and constitutional revisions in a manner similar to the California Constitution. (Ala. Const., art. XVIII, §§ 284, 286; Alaska Const., art. XIII, §§ 1, 4; Ariz. Const., art. 21, §§ 1, 2; Colo. Const., art. XIX, §§ 1, 2; Idaho Const., art. XX, §§ 1, 3; Ky. Const., §§ 256, 258; La. Const., art. XIII, §§ 1, 2; Mich. Const., art. XII, §§ 1-3; Mont. Const., art. XIV, §§ 1-9; Neb. Const., art. XVI, §§ 1,2; Nev. Const., art. 16, §§ 1,2; Ohio Const., art. XVI, §§ 1,2; Okla. Const., art. 24, §§ 1, 2; Or. Const., art. XVII, §§ 1, 2; S.C. Const., art. XVI, §§ 1, 3; S.D. Const., art. XXIII, §§ 1, 2; Utah Const., art. XXIII, §§ 1, 2.) In only two of these states—Alaska and Oregon—have the new marriage provisions been challenged as constitutional revisions. We discuss the judicial decisions in those two states below.
Under the Alaska Constitution, amendments to that constitution may be proposed by a two-thirds vote of each legislative house and take effect if approved by a majority of the voters. A constitutional revision, by contrast, may be proposed only by a constitutional convention. (See Alaska Const., art. XIII, §§ 1, 4.)
The first ballot proposition provided: “ ‘Rights of Prisoners. Notwithstanding any other provision of this constitution, the rights and protections, and the extent of those rights and protections, afforded by this constitution to prisoners convicted of crimes shall be limited to those rights and protections, and the extent of those rights and protections, afforded under the Constitution of the United States to prisoners convicted of crimes.’ ” (Bess v. Ulmer, supra,
As described by the Alaska court, the third measure proposed to transfer the power to draw legislative districts “from the governor, with the advice of a reapportionment board of his own appointment, to a five-member Redistricting Board, two members of which are appointed by the governor and one each by the House Speaker, the Senate President, and the Chief Justice of the Supreme Court.” (Bess v. Ulmer, supra,
Under the Oregon Constitution, a constitutional amendment may be proposed through the initiative process (Or. Const., art. IV, § l(2)(b)), but a constitutional revision of all or part of the constitution may be submitted to the voters only upon referral by at least two-thirds of the members of each house of the legislature. (Or. Const., art. XVII, § 2(1).)
We note that the right not to be deprived of liberty without due process of law and the guarantee of equal protection of the laws—the state constitutional rights underlying the Massachusetts Supreme Judicial Court’s decision in Goodridge, supra,
Under the Massachusetts Constitution, once the attorney general certifies that a petition contains only subjects not excluded from the initiative power, the petition may be circulated for signature. If the measure obtains the requisite number of signatures, it is submitted to the Massachusetts Legislature. If the measure receives the affirmative vote of at least one-quarter of the legislature, it is referred to the next legislative session. If at the next legislative session the measure again obtains the affirmative vote of one-quarter of the members of the legislature, it is submitted to a vote of the people at the next statewide election. (Mass. Const., amend. art. XLVII, pts. II, III, IV.)
The initiative measure at issue in Schulman, supra,
As we have seen (ante, at pp. 412-413), the California Constitution contains a nearly identical provision.
The Iowa Constitution, like the California Constitution, distinguishes between constitutional amendments and constitutional revisions, providing that a constitutional revision may be proposed only by a constitutional convention. (See Iowa Const., art. X, §§ 1 [amendment], 3 [revision].) Notably, the court in Varnum v. Brien did not confine its reference only to the provision authorizing alteration of the Iowa Constitution by constitutional revision.
Insofar as petitioners rely by analogy on the United States Supreme Court’s decision in City of Boerne v. Flores (1997)
This provision is currently set forth in nearly identical language in article II, section 1 of the California Constitution. (See, ante, at p. 412.)
Many other state constitutions explicitly refer to the people’s right to alter their constitution as an “inalienable” right. (See, e.g., Ala. Const., art. I, § 2; Ky. Const., § 4; Md. Const., Decl. of Rights, art. 1; Pa. Const., art. 1, § 2; Tex. Const., art. I, § 2; Va. Const., art. I, § 3; W.Va. Const., art. III, § 3; Wyo. Const., art. 1, § 1.)
For example, although article I, section 16 of the current California Constitution refers to the right to trial by jury as an “inviolate right” (italics added) (as did the comparable provision in the original Constitution (see Cal. Const. of 1849, art. I, § 3)), the constitutional right to jury trial was altered by a constitutional amendment permitting the Legislature to provide that a
Similarly, article I, section 15, which sets out a number of fundamental rights of criminal defendants that also were contained in the Declaration of Rights in California’s first state Constitution (see Cal. Const, of 1849, art. I, § 8), was modified in 1934 by a constitutional amendment adopted through the initiative process. This amendment permitted a trial judge in a criminal proceeding to comment on the evidence and, if a defendant chose not to testify, to comment on the defendant’s failure to testify. (Cal. Const., art. I, former § 13, as amended Nov. 6, 1934.) The portion of the 1934 amendment permitting judicial comment on a defendant’s failure to testify “was deleted in 1974 as violative of the defendant’s right to remain silent under the Fifth Amendment to the federal Constitution.” (Cal. Const. Reference Guide, supra, at p. 54.) The state constitutional rule permitting judicial comment on the evidence remains in effect and currently is set forth in article VI, section 10 of the California Constitution.
In addition, article I, section 19—the current provision barring the taking of private property for public use without the payment of just compensation (cf. Cal. Const, of 1849, art. I, § 8)—includes an explicit qualification, first added by a constitutional amendment adopted in 1918, authorizing the Legislature to permit a public entity to obtain possession of property upon “commencement of eminent domain proceedings,” but before their completion, by “deposit in court and prompt release to the owner” of an amount “determined by the court to be the probable amount of just compensation.” (See Cal. Const., art. I, former § 14, as amended Nov. 5, 1918.)
Finally, as discussed above (see, ante, at p. 448), the state equal protection clause set forth in article I, section 7, contains an explicit exception, adopted by a constitutional amendment in 1979, prohibiting a court from requiring the busing of students as a remedy for violations of state equal protection principles except as required by the United States Constitution.
As one legal commentator has explained: “To empower the courts not simply to review the procedures whereby amendments were adopted but also to void amendments on the basis of their substantive content would surely threaten the notion of a government founded on the consent of the governed.” (Vile, The Case Against Implicit Limits on the Constitutional Amending Process, Responding to Imperfection (Levinson edit. 1995) 191, 198; see also Tribe, A Constitution We Are Amending: In Defense of a Restrained Judicial Role (1983) 97 Harv. L.Rev. 433, 442 [“allowing the judiciary to pass on the merits of constitutional amendments would unequivocally subordinate the amendment process to the legal system it is intended to override and would thus gravely threaten the integrity of the entire structure”].)
We have no occasion in this case to determine whether same-sex couples who were lawfully married in another jurisdiction prior to the adoption of Proposition 8, but whose marriages were not formally recognized in California prior to that date, are entitled to have their marriages recognized in California at this time. None of the petitioners before us in these cases falls within this category, and in the absence of briefing by a party or parties whose rights would be affected by such a determination, we conclude it would be inappropriate to address that issue in these proceedings.
Concurrence Opinion
When California voters exercise their power of initiative, a simple majority vote is sufficient to amend any part of the state Constitution. (Cal. Const., art. XVIII, §§ 3, 4.) To determine whether the voters have validly exercised this power, a judge must put aside any personal views and apply the law as set forth in the state Constitution and in this court’s previous decisions. And when the voters have validly exercised this power, as they did here, a judge must enforce the Constitution as amended.
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)
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 enlargе 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,
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 Cal. Const., art. XVIII, §§ 1-4.) Because it does not restrict or impair this court’s authority to interpret and enforce the state Constitution, the initiative measure does not violate the separation of powers doctrine. And, contrary to the Attorney General’s contention, the state Constitution does not prohibit constitutional amendments qualifying or restricting rights that the state Constitution describes as “inalienable,” nor does it require that such amendments be supported by a compelling interest.
Unlike the state Constitution that this court interpreted in the Marriage Cases, supra,
With these observations, I concur fully in the court’s opinion authored by the Chief Justice.
Concurrence Opinion
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.
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)
Until today, the court has never held that a constitutional initiative was an amendment rather than a revision 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)]
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].)
The Constitution does not define the terms “revision” and “amendment” (Cal. Const., art. XVIII, §§ 1, 4), but we found these plain English words clear enough when we first considered them in 1894, within the memory of living delegates to the 1878-1879 constitutional convention. (Livermore v. Waite (1894)
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 instrumenf’ and “the underlying principles upon which it rests . . . .” (Livermore v. Waite, supra,
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 (Fam. Code, § 308.5) we confronted in the Marriage Cases, supra,
In the Marriage Cases, supra,
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,
I also agree with the majority that Proposition 8 affects only nomenclature and not the other rights associated with marriage, does not invalidate same-sex marriages already in existence when the initiative took effect, and does not change the rule that laws discriminating on the basis of sexual orientation—a suspect classification—must survive the highest level of scrutiny under the state equal protection clause. (Cal. Const., art. I, § 7, subd. (a); see In re Marriage Cases (2008)
Specifically, the defendant in People v. Frierson, supra,
The State Public Defender, as amicus curiae in In re Lance W., supra,
In People v. Frierson, supra,
Similarly, we concluded in In re Lance W., supra,
The occasion for Owin’s remarks was to persuade the minority, native-Califomian, Spanish-speaking delegates to join the majority, recently immigrated, English-speaking delegates in the effort to draft a state constitution. “Never in the history of the world did a similar convention come together. They were there to form a state out of unorganized territory; out of territory only lately wrested from a subjugated people, who were elected to assist in framing a constitution in conformity with the political view of the conquerors. These native delegates were averse to the change about to be made.” (23 Bancroft’s Works, History of California, vol. VI, 1848-1859 (1888) p. 284.)
The majority opinion contends I have simply “embracefd] petitioners’ proposed interpretation of the relevant California precedent.” (Maj. opn., ante, at p. 442.) To the extent the majority opinion means that I agree with petitioners that the relevant precedent is of limited effect and adopts no categorical “governmental structure” requirement for constitutional revisions, it is correct. To the extent it implies more than that, it is incorrect. Petitioners have argued that changes to certain fundamental rights categorically may be made only through the revision process. Unlike petitioners—and the majority as well—I think it clear we have no license to engraft onto the definition of a revision or amendment any categorical limitation the drafters did not see fit to include.
For example, the requirements that domestic partners be of the same sex (Fam. Code, § 297, subd. (b)(5)(A)), unless one is over the age of 62 (id., subd. (b)(5)(B)), and the requirement that both persons have a common residence (id., subd. (b)(1)). These are important differences. The first requirement contributes to the perception that domestic partnerships enjoy a lower status than marriages (see Marriage Cases, supra,
In the Marriage Cases, supra,
Concurrence Opinion
“[T]he ‘absolute equality of all’ persons before the law [is] ‘the very foundation principle of our government.’ ” (Varnum v. Brien (Iowa 2009)
In In re Marriage Cases (2008)
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. (Cal. Const., art. II, § 8.) Or is this limitation on the scope of the equal protection clause to deny the full protection of the law to a minority group based upon a suspect classification such a fundamental change that it can only be accomplished by revising the California Constitution, either through a constitutional convention or by a measure passed by a two-thirds vote of both houses of the Legislature and approved by the voters? (Cal. Const., art. XVIII.)
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 California Constitution and have been embodied in that document from its inception. (Grodin et al., The California State Constitution: A Reference Guide (1993) p. 47.) Former section 11 of article I of the original 1849 Constitution stated, “All laws of a general nature shall have a uniform operation” and section 21 of article I of the 1879 Constitution added, “nor shall any citizen, or class of citizens, be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens.” These provisions were “substantially the equivalent of the equal protection clause of the Fourteenth Amendment to the United States Constitution.” (Department of Mental Hygiene v. Kirchner (1965)
Ensuring equal protection prevents “governmental decisionmakers from treating differently persons who are in all relevant respects alike. [Citation.]” (Nordlinger v. Hahn (1992)
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,
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)
California’s equal protection doctrine has not been confined to that of federal Fourteenth Amendment jurisprudence: “[0]ur state equal protection provisions ... are possessed of an independent vitality which, in a given case, may demand an analysis different from that which would obtain if only the federal standard were applicable.” (Serrano v. Priest (1976)
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 tо 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 California Constitution . . . .” (Marriage Cases, supra,
We recognized in the Marriage Cases that “drawing] 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,
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 California Constitution since 1849. Promising equal treatment to some is fundamentally different from promising equal treatment to all. Promising treatment that is almost equal is fundamentally different from ensuring truly equal treatment. Granting a disfavored minority only some of the rights enjoyed by the majority is fundamentally different from recognizing, as a constitutional imperative, that they must be granted all of those rights. Granting same-sex couples all of the rights enjoyed by opposite-sex couples, except the right to call their “ ‘officially recognized, and protected family relationship’ ” (maj. opn., ante, at p. 388) a marriage, still denies them equal treatment.
There is no doubt that the ultimate authority over the content of the California Constitution lies with the people. “All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.” (Cal. Const., art. II, § 1.) But there are two methods for the people to alter the California Constitution: by revising it or by amending it. A revision to the Constitution must be initiated by the Legislature in one of two ways: the Legislature, by a two-thirds vote, “may submit at a general election the question whether to call a convention to revise the Constitution” (Cal. Const., art. XVIII, § 2), or the Legislature, by a two-thirds vote, may propose a revision of the Constitution to be submitted to the voters (Cal. Const., art. XVIII, § 1). This is in contrast to a constitutional amendment, which can be accomplished by a majority of the electorate after the signatures of 8 percent of the number of persons who voted in the last gubernatorial election have qualified it for the ballot. (Cal. Const., art. II, § 8, subd. (b).)
We have long recognized the importance of this distinction between revising and amending the Constitution. In Livermore v. Waite (1894)
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.)
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 maj oritarian 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 article IV, section 1 of the Constitution to provide in relevant part that “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 . . . .” There is no evidence that those enacting the initiative process intended to alter the distinction between amending and revising the Constitution that this court had recognized in Livermore v. Waite, supra,
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)
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)
In upholding section 28(d), we equated the power to amend the Constitution to legislative power: “The Legislature and, a fortiori, the people acting through either the reserved power of statutory initiative or the power to initiate and adopt constitutional amendments (art. II, § 8) may prescribe rules of procedure and of evidence to be followed in the courts of this state.” (In re Lance W., supra,
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 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.” (Maj. opn., ante, at p. 447.) The majority cites in support the amendment to article I, section 7, subdivision (a) of the California Constitution, which circumscribed public school busing, and Proposition 209, which curtailed affirmative action programs. (See maj. opn., ante, at pp. 447-448; Hi-Voltage Wire Works, Inc. v. City of San Jose (2000)
Nor is Raven v. Deukmejian (1990)
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)
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)
In sum, none of our prior cases discussed above, nor any other case discussed in the majority opinion, holds that a modification of the California Constitution constitutes a revision only if it alters the structure of government. None of our prior cases considered whether an amendment to the Constitution could restrict the scope of the equal protection clause by adding language that requires discrimination based upon a suspect classification. Nor did these cases consider, as in the present situation, whether a transfer of the authority to protect the equal rights of a suspect class away from the judiciary to an electoral majority is the type of structural change that can be effected by a constitutional amendment. For the reasons discussed above, I believe this kind of change in the countermaj oritarian nature of the equal protection clause is the type of fundamental alteration that can be done only through a constitutional revision.
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 California Constitution could be repealed altogether by an amendment passed by a bare majority of voters through the initiative process.
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,
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 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.” (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 countermaj oritarian 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 California Constitution to require deprivation of a fundamental right on the basis of a suspect classification. The majority’s holding is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution.
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 California Constitution to deny a fundamental right to a group that has historically been subject to discrimination on the basis of a suspect classification, violates the essence of the equal protection clause of the California Constitution and fundamentally alters its scope and meaning. Such a change cannot be accomplished through the initiative process by a simple amendment to our Constitution enacted by a bare majority of the voters; it must be accomplished, if at all, by a
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.
I agree with part VI of the majority opinion that Proposition 8 does not invalidate same-sex marriages entered into before its passage. (See maj. opn., ante, at p. 392.) I also agree with the majority opinion that Proposition 8 does not entirely repeal or abrogate a same-sex couple’s substantive state constitutional right to marry as set forth in the Marriage Cases, but rather carves out an exception by “reserving the official designation of the term ‘marriage’ for the union of opposite-sex couples.” (Maj. opn., ante, at p. 388.)
The equal protection clause was added to the California Constitution, article I, section 7, upon the recommendation of the California Constitution Revision Commission, as part of 1974’s Proposition 7, a ballot measure proposed by two-thirds of both the Senate and the Assembly, which, according to the Legislative Counsel’s Digest, “[rjevises, renumbers and specifically provides for various constitutional rights of persons.” (Legis. Counsel’s Dig., Assem. Const. Amend. No. 60 (1973-1974 Reg. Sess.) 2 Stats. 1974, Summary Dig., p. 275.)
The majority contends that “when the entire pertinent passage of the Livermore decision is considered, it appears reasonable to conclude that the court in Livermore itself would have recognized that a measure such as Proposition 8 constitutes a constitutional amendment, because in describing the type of measures that would constitute an amendment, the court in that case noted that ‘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 [as such] might be of only temporary effect.’ [Citation.] In adding to the California Constitution a provision declaring that marriage shall refer only to a union between a man and a woman, Proposition 8 would appear to constitute just the type of discrete ‘popular’ and ‘sociological’ amendment that the Livermore decision had in mind.” (Maj. opn., ante, at p. 454, fn. omitted.) Yet it is clear from reading the “entire” passage, that the majority’s interpretation is dubious, because Livermore speaks in terms of enacting in “permanent form” “a rule which [the Legislature] has the power itself to enact as a law, but which [as such] might be of only temporary effect.” (Livermore v. Waite, supra,
In Californians for an Open Primary v. McPherson (2006)
Article I, section 13 of the California Constitution follows closely the text of the Fourth Amendment to the United States Constitution, stating: “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.”
The majority also cites in support Proposition 14, a state constitutional amendment adopted in 1964 that repealed a statutory provision barring racial discrimination in the sale or rental of housing. As the majority states: “Although Proposition 14 subsequently was held invalid under the federal Constitution (Mulkey v. Reitman (1966)
In emphasizing the limits of Frierson, I do not in any sense call into question the constitutionality of California’s death penalty law. Rather, I share Justice Mosk’s view that People v. Anderson (1972)
In Korematsu v. United States (1944)
In Romer v. Evans (1996)
The majority quotes dicta in the decision in Varnum v. Brien that recognizes that “the power of the constitution flows from the people, and the people of Iowa retain the ultimate power to shape it over time.” (Varnum v. Brien, supra,
It is not remarkable that the Iowa Supreme Court recognized that the people retain the ultimate power to shape the constitution. As I stated above, “[t]here is no doubt that the ultimate authority over the content of the California Constitution lies with the people.” (Ante, at p. 487.) And even if we assume that the Iowa court’s citation of a provision authorizing amendments to the Iowa Constitution was intended to express the view that its own decision regarding marriage equality could be overturned by constitutional amendment, that dicta has no bearing on whether Proposition 8 was a proper amendment to the California Constitution, because the process for amending the Iowa Constitution differs substantially from the process for amending the California Constitution. In Iowa, the people cannot directly initiate a constitutional amendment, but can only vote on an amendment after it has been approved by the legislature, then reapproved by a new legislature after the next general election. (See Iowa Const., art. X, § 1.) The Iowa Constitution can only be revised through a constitutional convention. (Id., § 3.) The procedure for amending the Iowa Constitution, therefore, resembles one of the procedures for revising the California Constitution, requiring approval both by more than a simple majority of the legislature (in California by a two-thirds majority, in Iowa by a majority of two successive legislatures) and by a majority of the people. Accordingly, the above quoted passage from Varnum, even when read expansively, does not support the majority’s position that a simple majority of the electorate can amend the California Constitution to deprive a suspect class of a fundamental right.