Although it's an issue that isn't customarily within my wheelhouse, the Opinion issued by the California Supreme Court this morning is undoubtedly "complex." As one barometer of the complexlity, the introductory comments span some twelve pages. Most opinions get a paragraph or two to set the stage. But after perusing the Opinion out of general curiosity, I decided that a few remarks (and a few long excerpts) are in order to press against the inevitability of mischaracterizations about what the California Supreme Court actually did and did not do in its opinion. In other words, the more obscure the legal analysis, the more likely it is that it won't be summarized correctly.
On May 26, 2009, in Strauss, et al. v. Horton, as State Registrar of Vital Statistics, et al., the California Supreme Court denied Petitions for Original Writs of Mandate. The Petitions challenged the validity of California Proposition 8, which added a new section to article I of the California Constitution. That new section, section 7.5, reads in full: "Only marriage between a man and a woman is valid or recognized in California." (Slip op., at p. 8.) The language of section 7.5 is identical to language previously included in Proposition 22, which proposed the adoption in California of a new statutory provision, Family Code section 308.5. Proposition 22 was approved by voters and later found to be unconstitutional by the California Supreme Court in the consolidated matter entitled In re Marriage Cases (2008) 43 Cal.4th 757.
Today's Opinion in Strauss offers some important clarifications about what the Court could and could not do in the exercise of its constitutional role:
For the third time in recent years, this court is called upon to address a question under California law relating to marriage and same-sex couples.
In Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055 (Lockyer), we were faced with the question whether public officials of the City and County of San Francisco acted lawfully by issuing marriage licenses to same-sex couples in the absence of a judicial determination that the California statutes limiting marriage to a union between a man and a woman were unconstitutional. We concluded in Lockyer that the public officials had acted unlawfully in issuing licenses in the absence of such a judicial determination, but emphasized in our opinion that the substantive question of the constitutional validity of the marriage statutes was not before our court in that proceeding.
In In re Marriage Cases (2008) 43 Cal.4th 757 (hereafter the Marriage Cases), we confronted the substantive constitutional question that had not been addressed in Lockyer — namely, the constitutional validity, under the then-controlling provisions of the California Constitution, of the California marriage statutes limiting marriage to a union between a man and a woman. A majority of this court concluded in the Marriage Cases that same-sex couples, as well as opposite-sex couples, enjoy the protection of the constitutional right to marry embodied in the privacy and due process provisions of the California Constitution, and that by granting access to the designation of "marriage" to opposite-sex couples and denying such access to same-sex couples, the existing California marriage statutes impinged upon the privacy and due process rights of same-sex couples and violated those couples’ right to the equal protection of the laws guaranteed by the California Constitution.
Proposition 8, an initiative measure approved by a majority of voters at the November 4, 2008 election, added a new section — section 7.5 —to article I of the California Constitution, providing: "Only marriage between a man and a woman is valid or recognized in California." The measure took effect on November 5, 2008. In the present case, we address the question whether Proposition 8, under the governing provisions of the California Constitution, constitutes a permissible change to the California Constitution, and — if it does — we are faced with the further question of the effect, if any, of Proposition 8 upon the estimated 18,000 marriages of same-sex couples that were performed before that initiative measure was adopted.
In a sense, this trilogy of cases illustrates the variety of limitations that our constitutional system imposes upon each branch of government — the executive, the legislative, and the judicial.
In addressing the issues now presented in the third chapter of this narrative, it is important at the outset to emphasize a number of significant points. First, as explained in the Marriage Cases, supra, 43 Cal.4th at page 780, our task in the present proceeding is not to determine whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution. Regardless of our views as individuals on this question of policy, we recognize as judges and as a court our responsibility to confine our consideration to a determination of the constitutional validity and legal effect of the measure in question. It bears emphasis in this regard that our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values.
Second, it also is necessary to understand that the legal issues before us in this case are entirely distinct from those that were presented in either Lockyer or the Marriage Cases. Unlike the issues that were before us in those cases, the issues facing us here do not concern a public official’s authority (or lack of authority) to refuse to comply with his or her ministerial duty to enforce a statute on the basis of the official’s personal view that the statute is unconstitutional, or the validity (or invalidity) of a statutory provision limiting marriage to a union between a man and a woman under state constitutional provisions that do not expressly permit or prescribe such a limitation. Instead, the principal issue before us concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process so as to incorporate such a limitation as an explicit section of the state Constitution.
In considering this question, it is essential to keep in mind that the provisions of the California Constitution governing the procedures by which that Constitution may be amended are very different from the more familiar provisions of the United States Constitution relating to the means by which the federal Constitution may be amended. The federal Constitution provides that an amendment to that Constitution may be proposed either by two-thirds of both houses of Congress or by a convention called on the application of two-thirds of the state legislatures, and requires, in either instance, that any proposed amendment be ratified by the legislatures of (or by conventions held in) three-fourths of the states. (U.S. Const., art. V.) In contrast, the California Constitution provides that an amendment to that Constitution may be proposed either by two-thirds of the membership of each house of the Legislature (Cal. Const., art. XVIII, § 1) or by an initiative petition signed by voters numbering at least 8 percent of the total votes cast for all candidates for Governor in the last gubernatorial election (Cal. Const., art. II, § 8, subd. (b); id., art. XVIII, § 3), and further specifies that, once an amendment is proposed by either means, the amendment becomes part of the state Constitution if it is approved by a simple majority of the voters who cast votes on the measure at a statewide election. (Id., art. XVIII, § 4.)
(Slip op., at pp. 1-4, origial emphasis.) The Court then explained the scope of its holding, which may prove to be somewhat different than what was sought by any of the parties:
In analyzing the constitutional challenges presently before us, we first explain that the provision added to the California Constitution by Proposition 8, when considered in light of the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757 (which preceded the adoption of Proposition 8), properly must be understood as having a considerably narrower scope and more limited effect than suggested by petitioners in the cases before us. Contrary to petitioners’ assertion, Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right of privacy and due process that was analyzed in the majority opinion in the Marriage Cases — that is, the constitutional right of same-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" (Marriage Cases, supra, 43 Cal.4th at p. 829). Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion. Instead, the measure 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 as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.
By clarifying this essential point, we by no means diminish or minimize the significance that the official designation of "marriage" holds for both the proponents and opponents of Proposition 8; indeed, the importance of the marriage designation was a vital factor in the majority opinion’s ultimate holding in the Marriage Cases, supra, 43 Cal.4th 757, 845-846, 855. Nonetheless, it is crucial that we accurately identify the actual effect of Proposition 8 on same-sex couples’ state constitutional rights, as those rights existed prior to adoption of the proposition, in order to be able to assess properly the constitutional challenges to the proposition advanced in the present proceeding. We emphasize only that among the various constitutional protections recognized in the Marriage Cases as available to same-sex couples, it is only the designation of marriage — albeit significant — that has been removed by this initiative measure.
Taking into consideration the actual limited effect of Proposition 8 upon the preexisting state constitutional right of privacy and due process and upon the guarantee of equal protection of the laws, and after comparing this initiative measure to the many other constitutional changes that have been reviewed and evaluated in numerous prior decisions of this court, we conclude Proposition 8 constitutes a constitutional amendment rather than a constitutional revision. As a quantitative matter, petitioners concede that Proposition 8 — which adds but a single, simple section to the Constitution — does not constitute a revision. As a qualitative matter, the act of limiting access to the designation of marriage to opposite-sex couples does not have a substantial or, indeed, even a minimal effect on the governmental plan or framework of California that existed prior to the amendment. Contrary to petitioners’ claim in this regard, the measure does not transform or undermine the judicial function; this court will continue to exercise its traditional responsibility to faithfully enforce all of the provisions of the California Constitution, which now include the new section added through the voters’ approval of Proposition 8. Furthermore, the judiciary’s authority in applying the state Constitution always has been limited by the content of the provisions set forth in our Constitution, and that limitation remains unchanged.
(Slip op., at pp. 6-8.) Although it is small consolation to the proponents of gay marriage, my reading of this Opinion is that the California Supreme Court construes the Constitutional amendment effectuated by Proposition 8 as having reserved the word "marriage" for state-recognized unions between men and women, while preserving the Marriage Cases holding that gay couples are entitled 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." (Marriage Cases, supra, 43 Cal.4th at p. 829). They just can't call it a marriage. In other words, everybody is going to be unhappy with this decision.
While there is likely to be much commentary about what should happen in our society after this Opinion, I think that, in a difficult circumstance, the California Supreme Court correctly discharged its limited role in our government. The Court doesn't deserve to be pilloried here, and I hope that it is not.