■ Strauss v. Horton , No. S168047

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.) 

As is evident from the foregoing description, the process for amending our state Constitution is considerably less arduous and restrictive than the amendment process embodied in the federal Constitution, a difference dramatically demonstrated by the circumstance that only 27 amendments to the United States Constitution have been adopted since the federal Constitution was ratified in 1788, whereas more than 500 amendments to the California Constitution have been adopted since ratification of California’s current Constitution in 1879.  (See Council of State Governments, The Book of the States (2008 ed.) p. 10.)

At the same time, as numerous decisions of this court have explained, although the initiative process may be used to propose and adopt amendments to the California Constitution, under its governing provisions that process may not be used to revise the state Constitution.  (See, e.g., McFadden v. Jordan (1948) 32 Cal.2d 330; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208; Raven v. Deukmejian (1990) 52 Cal.3d 336.)  Petitioners’ principal argument rests on the claim that Proposition 8 should be viewed as a constitutional revision rather than as a constitutional amendment, and that this change in the state Constitution therefore could not lawfully be adopted through the initiative process.

As we discuss at length below, in determining whether Proposition 8 constitutes a constitutional amendment or, instead, a constitutional revision, we by no means write on a clean slate.  Although the issue arises in this case in the context of an initiative measure, the distinction drawn in the California Constitution between constitutional amendments and constitutional revisions long predates the adoption in 1911 of the initiative process as part of the California Constitution.  The origin and history in the pre-initiative era of this distinction between an amendment and a revision shed considerable light upon the contemplated scope of the two categories.  As we shall see, our state’s original 1849 California Constitution provided that the Legislature could propose constitutional amendments, but that a constitutional revision could be proposed only by means of a constitutional convention, the method used in 1849 to draft the initial constitution in anticipation of California’s statehood the following year.  Thus, as originally adopted, the constitutional amendment/revision dichotomy in California — which mirrored the framework set forth in many other state constitutions of the same vintage — indicates that the category of constitutional revision referred to the kind of wholesale or fundamental alteration of the constitutional structure that appropriately could be undertaken only by a constitutional convention, in contrast to the category of constitutional amendment, which included any and all of the more discrete changes to the Constitution that thereafter might be proposed.  (As we note later, it was not until the state Constitution was changed in 1962 — through a constitutional amendment — that the Legislature obtained the authority to propose revisions to all or part of the Constitution.)

Furthermore, in addition to the historical background of the amendment/revision language that appears in the California Constitution itself, over the past three decades numerous decisions of this court have considered whether a variety of proposed changes to the California Constitution represented constitutional amendments or instead constitutional revisions.  Those decisions establish both the analytical framework and the legal standard that govern our decision in this case, and further apply the governing standard to a wide array of measures that added new provisions and substantially altered existing provisions of the state Constitution.  Those decisions explain that in resolving the amendment/revision question, a court carefully must assess (1) the meaning and scope of the constitutional change at issue, and (2) the effect — both quantitative and qualitative — that the constitutional change will have on the basic governmental plan or framework embodied in the preexisting provisions of the California Constitution.

In analyzing the constitutional challenges presently before us, we first explain that the provision added to the California Constitution by Proposition 8, when considered in light of the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757 (which preceded the adoption of 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.

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 Proposition 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 the Bill of Rights of this Constitution”].)  In contrast, the California Constitution contains no comparable limitation.  In the absence of such an express restriction on the initiative power, and in light of past California authorities, we conclude that the California Constitution cannot be interpreted as restricting the scope of the people’s right to amend their Constitution in the manner proposed by petitioners.

Petitioners also claim that Proposition 8 violates the separation of powers doctrine embodied in the California Constitution.  We conclude this claim similarly lacks merit.  Contrary to petitioners’ assertion, Proposition 8 does not “readjudicate” the issue that was litigated and resolved in the Marriage Cases, supra, 43 Cal.4th 757.  The initiative measure does not declare the state of the law as it existed under the California Constitution at the time of the Marriage Cases, but rather establishes a new substantive state constitutional rule that took effect upon the voters’ approval of Proposition 8.  Because the California Constitution explicitly recognizes the right of the people to amend their state Constitution through the initiative process, the people, in exercising that authority, have not in any way impermissibly usurped a power allocated by the Constitution exclusively to the judiciary or some other entity or branch of government.

The Attorney General, in his briefing before this court, has advanced an alternative theory — not raised by petitioners in their initial petitions — under which he claims that even if Proposition 8 constitutes a constitutional amendment rather than a constitutional revision, that initiative measure nonetheless should be found invalid under the California Constitution on the ground that the “inalienable rights” embodied in 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, 43 Cal.4th at p. 781), such as the right to establish an officially recognized and protected family relationship with the person of one’s choice and to raise children within that family. 

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 interpretation of a right that the Constitution denominates “inalienable.”  The natural-law jurisprudence reflected in passages from the few early judicial opinions relied upon by the Attorney General has been discredited for many years, and, in any event, no decision suggests that when a constitution has been explicitly amended to modify a constitutional right (including a right identified in the Constitution as “inalienable”), the amendment may be found unconstitutional on the ground that it conflicts with some implicit or extraconstitutional limitation that is to be framed and enforced by the judiciary.  Although the amending provisions of a constitution can expressly place some subjects or portions of the constitution off-limits to the amending process — as already noted, some state constitutions contain just such explicit limits — the California Constitution contains no such restraints.  This court would radically depart from the well-established limits of the judicial function were it to engraft such a restriction onto the Constitution in the absence of an explicit constitutional provision limiting the amendment power.

            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.[1]  But it is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it.  If the process for amending the Constitution is to be restricted — perhaps in the manner it was explicitly limited in an earlier version of our state Constitution (see, post, at pp. 46-55), or as limited in the present-day constitutions of some of our sister states (see, post, at pp. 105-107) — this is an effort that the people themselves may undertake through the process of amending their Constitution in order to impose further limitations upon their own power of initiative.

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.

■ HELD:

California's Proposition 8, the initiative measure changing the official designation of the term "marriage" for the union of opposite-sex couples, constitutes a permissible change to the California Constitution, as Prop. 8: 1) is a constitutional amendment and not a constitutional revision; 2) does not violate the separation of powers doctrine; and 3) is not invalid under the "inalienable rights" theory proffered by the Attorney General. Prop. 8 and the new section in the Constitution cannot properly be interpreted to apply retroactively, and therefore the marriages of same-sex couples performed prior to the effective date of Prop. 8 remain valid and must continue to be recognized in the state.
Strauss v. Horton-S168047-5/26/09 SC
Strauss v. Horton-S168047-5/26/09 SC-PDF  

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