The law and Prop. 8

Is Proposition 8 the last word on same-sex marriage in California? A debate that started this year in the state Supreme Court met its latest verdict at the ballot box Tuesday. But in the coming months, the issue will be back in front of the court, which has to sort through two important legal questions.

Proposition 8 adds a provision to the California Constitution that says: “Only marriage between a man and a woman is valid or recognized in California,� effectively overruling the court’s May 15 decision allowing same-sex couples to wed. After the initiative passed, its opponents filed a legal challenge, claiming Proposition 8 should be invalidated because it was not enacted under the proper procedures for changing the state Constitution.

They have a good argument, but one that faces difficult precedents.

Article 18 of the state Constitution provides that the document can be changed by amendment or by revision. An amendment may be enacted by initiative with a majority vote, whereas a revision must first be passed by two-thirds of the Legislature before being submitted to the voters. (California’s Legislature has voted twice in recent years to legalize same-sex marriage, but the governor vetoed it.)

Does Proposition 8 qualify as a revision? Under the case law, it’s a revision only if it “substantially alters the basic governmental framework set forth in our Constitution.� Proposition 8 does exactly that, its opponents say, by eliminating a fundamental right for a specific group, and by limiting the judiciary’s constitutional role in enforcing equal protection and privacy guarantees.

Historically, however, the court has taken a narrow view of what kind of measure “substantially alters the basic governmental framework.� For example, neither Proposition 13, which capped property tax rates, nor Proposition 140, which imposed legislative term limits, were held to be a revision of the Constitution despite their far-reaching transformation of state government. Moreover, a 1972 initiative that reinstated the death penalty after the court had declared it cruel and unusual punishment was also deemed an amendment, not a revision, even though it directly limited the judiciary’s power to declare fundamental rights.

Nevertheless, there are good reasons for the California Supreme Court to rethink its jurisprudence in this area. Even if Proposition 8 does not “substantially alter the basic governmental framework,� there is no question that it targets a historically vulnerable group and eliminates a very important right. Changing the Constitution -- the state’s paramount law -- in such a momentous way arguably calls for deliberative rather than direct democracy. Indeed, as early as the nation’s founding, our constitutional tradition has favored representative democracy over simple majority rule when it comes to deciding minority rights.

The second question is whether Proposition 8 means the state must nullify the roughly 18,000 same-sex marriage licenses issued in recent months. Although the answer is not clear-cut, retroactivity is generally not favored in the law because people are entitled to conduct their lives in reliance on the law as it exists today, without having to anticipate how it might change in the future. Same-sex couples who got married may have decided to move in together, to buy property or even to adopt children in reliance on the personal commitment and societal legitimacy that accompany marriage.

Courts have been willing, in some instances, to apply a law retroactively if its retroactivity is clearly stated in the law itself or is clearly intended by the voters. But the text of Proposition 8 contains no clear statement to this effect. The official voter information guide contains a statement that Proposition 8 applies to marriages “regardless of when or where performed,� but this language is buried in the fifth paragraph of the proponents’ rebuttal to the opponents’ argument. That’s thin support for a finding of retroactivity.

Why does it matter whether gay couples remain married in a post-Proposition 8 world? One answer has to do with the dignity and stature that marriage confers. Even if marriage provides no greater rights than domestic partnership, a separate-but-equal regime unavoidably signals that same-sex relationships are of lesser worth.

Another answer has to do with the future of gay marriage writ large. Gay marriage is in the cross-hairs of a culture war, and culture wars, both sides know, are won through symbols, examples and personal experiences that shape one’s worldview.

Each of the 18,000 same-sex couples and their families in California represents a potential catalyst for broader acceptance of gay marriage. The more familiar we become with gay spouses and their children -- as our friends, neighbors and co-workers -- the more gay marriage will become an unremarkable thread of our social fabric. Proposition 8 may then come to be viewed, in the long run, not as an enduring constitutional principle but as the will of a narrow and ultimately temporary majority.

Goodwin Liu is associate dean and professor of law at UC Berkeley.