California Supreme Court Takes Up Proposition 8

THE CALIFORNIA SUPREME COURT
Takes Up Proposition 8
Nina Schuyler
S
ix months after the California Supreme
Court issued its groundbreaking ruling,
striking down the state’s ban on same-sex
marriage, the court has taken up the case
again, this time through the lens of Proposition 8.
Narrowly approved by 52 percent of voters in
November, Prop 8 repealed the court’s May 2008
decision, eliminating the fundamental right of
marriage for gay and lesbian citizens. Immediately
after Prop 8’s passage, three lawsuits were filed,
and in November, the court agreed 6–1 to hear the
matter, with Justice Joyce L. Kennard dissenting.
This time the fundamental issue before the court is
whether Prop 8 is an amendment or a revision to
the state constitution, though Attorney General
Jerry Brown has presented the argument that
Prop 8 is unconstitutional, and as a result, the
amendment/revision analysis is moot.
REVISION OR AMENDMENT?
Changes to the state’s constitution can be made in
two ways: through a revision, which is a broad,
comprehensive change to the constitution, or an
amendment. Unlike amendments, which can
qualify for the ballot with signatures on initiative
petitions, a revision requires a more deliberative
process. To be placed on the ballot, a revision
needs a two-thirds vote of the legislature or a state
constitutional convention.
36 SPRING 2009
Whether a change is a revision or an amendment
requires an examination of the quantitative and
qual i tative effects of the measure on the con sti tution. “Unfortunately,” says BASF past presi dent
Therese M. Stewart, chief deputy city attorney for
the San Francisco city attorney’s office, “there isn’t
more specific controlling language in the
constitution or case law as to what, exactly,
constitutes a revision or an amendment.” Since the
1890s, there have been only nine revision cases .
“The case before the court is one of first
impression,” says Joseph R. Grodin, professor of
law, UC Hastings College of the Law, and former
California Supreme Court justice. “I will not dare
to guess what the court will do.”
Opponents of Prop 8 are essentially making a
structural argument, says Grodin, directing the
court to consider the structure of the state’s
constitution and its role in protecting individual
and minority rights. The proponents of Prop 8, on
the other hand, argue there is no precedent for
drawing the line where the opponents suggest.
In its brief against Prop 8, the City and County of
San Francisco, along with fourteen other cities and
counties and seven married couples, relies heavily
on a 1990 case, Raven v. Deukmejian, in which the
court held an initiative amendment was a revision
and thus invalidated the initiative. That case
involved Proposition 115, which would have
limited the rights of criminal defendants to those
guaranteed
by
the
federal
Constitution. The court held the
measure’s fatal flaw was its
qualitative
effect
on
the
constitution: Prop 115 required
the state court’s blind obedience
to the U.S. Supreme Court.
“Like Prop 115,” says Stewart,
“Prop 8 is a qualitative revision to
the state’s constitution. Prop 8
involves a provision that deprives
a group, which was held by the
Supreme Court in May to be a Therese M. Stewart
suspect
class
under
equal
protection, of rights that are
fundamental under privacy and liberty,” she says.
“If Prop 8 is an amendment legitimately permitted
to happen by simple majority vote, then any
decision by the court with respect to the
constitutional rights of a minority would be
choice,” wrote Chief Justice
Ronald George in the 121page majority opinion. The
constitution “properly must be
interpreted to guarantee this
basic
civil
right
to
all
Californians, whether gay or
heterosexual, and to same-sex
couples as well as opposite-sex
couples.” The majority opinion
stated any law that discriminates
on the basis of sexual orientation
is constitutionally suspect, just as
laws that discriminate by race
or gender.
The Bar Association of San Francisco, along with
more than forty other bar organizations and civil
rights groups, filed an amicus curiae letter in
December, asking the court to hear the matter,
citing many of the concerns raised in the San
“If the court doesn’t have the last word, there is
no protection because majorities can be formed
around prejudice and passion and stirred into
Therese M. Stewart
states of hostility and hate.”
subject to being overturned by a simple majority
vote. That is dramatically different from what the
founders of the federal Constitution and voters
when they revised the state constitution conceived
of the judiciary’s role. If the court doesn’t have the
last word, there is no protection because majorities
can be formed around prejudice and passion and
stirred into states of hostility and hate.”
In May, the court held that the constitutional
guarantees of personal privacy and autonomy
protect “the right of an individual to establish a
legally recognized family with the person of one’s
Francisco city attorney’s brief. BASF’s brief was
one of a handful of briefs accepted to be heard by
the court.
“At the end of the day, Prop 8 is a discriminatory
act against a community that has been mar ginalized,” says Russell S. Roeca, BASF’s president,
cochair of BASF’s Marriage Fairness Task Force,
and a partner at Roeca Haas Hager LLP.
California has more than 100,000 households
headed by gay couples, about a quarter with
children, according to 2000 census data.
THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 37
THE CALIFORNIA SUPREME COURT
Takes Up Proposition 8
Nina Schuyler
S
ix months after the California Supreme
Court issued its groundbreaking ruling,
striking down the state’s ban on same-sex
marriage, the court has taken up the case
again, this time through the lens of Proposition 8.
Narrowly approved by 52 percent of voters in
November, Prop 8 repealed the court’s May 2008
decision, eliminating the fundamental right of
marriage for gay and lesbian citizens. Immediately
after Prop 8’s passage, three lawsuits were filed,
and in November, the court agreed 6–1 to hear the
matter, with Justice Joyce L. Kennard dissenting.
This time the fundamental issue before the court is
whether Prop 8 is an amendment or a revision to
the state constitution, though Attorney General
Jerry Brown has presented the argument that
Prop 8 is unconstitutional, and as a result, the
amendment/revision analysis is moot.
REVISION OR AMENDMENT?
Changes to the state’s constitution can be made in
two ways: through a revision, which is a broad,
comprehensive change to the constitution, or an
amendment. Unlike amendments, which can
qualify for the ballot with signatures on initiative
petitions, a revision requires a more deliberative
process. To be placed on the ballot, a revision
needs a two-thirds vote of the legislature or a state
constitutional convention.
36 SPRING 2009
Whether a change is a revision or an amendment
requires an examination of the quantitative and
qual i tative effects of the measure on the con sti tution. “Unfortunately,” says BASF past presi dent
Therese M. Stewart, chief deputy city attorney for
the San Francisco city attorney’s office, “there isn’t
more specific controlling language in the
constitution or case law as to what, exactly,
constitutes a revision or an amendment.” Since the
1890s, there have been only nine revision cases .
“The case before the court is one of first
impression,” says Joseph R. Grodin, professor of
law, UC Hastings College of the Law, and former
California Supreme Court justice. “I will not dare
to guess what the court will do.”
Opponents of Prop 8 are essentially making a
structural argument, says Grodin, directing the
court to consider the structure of the state’s
constitution and its role in protecting individual
and minority rights. The proponents of Prop 8, on
the other hand, argue there is no precedent for
drawing the line where the opponents suggest.
In its brief against Prop 8, the City and County of
San Francisco, along with fourteen other cities and
counties and seven married couples, relies heavily
on a 1990 case, Raven v. Deukmejian, in which the
court held an initiative amendment was a revision
and thus invalidated the initiative. That case
involved Proposition 115, which would have
limited the rights of criminal defendants to those
guaranteed
by
the
federal
Constitution. The court held the
measure’s fatal flaw was its
qualitative
effect
on
the
constitution: Prop 115 required
the state court’s blind obedience
to the U.S. Supreme Court.
“Like Prop 115,” says Stewart,
“Prop 8 is a qualitative revision to
the state’s constitution. Prop 8
involves a provision that deprives
a group, which was held by the
Supreme Court in May to be a Therese M. Stewart
suspect
class
under
equal
protection, of rights that are
fundamental under privacy and liberty,” she says.
“If Prop 8 is an amendment legitimately permitted
to happen by simple majority vote, then any
decision by the court with respect to the
constitutional rights of a minority would be
choice,” wrote Chief Justice
Ronald George in the 121page majority opinion. The
constitution “properly must be
interpreted to guarantee this
basic
civil
right
to
all
Californians, whether gay or
heterosexual, and to same-sex
couples as well as opposite-sex
couples.” The majority opinion
stated any law that discriminates
on the basis of sexual orientation
is constitutionally suspect, just as
laws that discriminate by race
or gender.
The Bar Association of San Francisco, along with
more than forty other bar organizations and civil
rights groups, filed an amicus curiae letter in
December, asking the court to hear the matter,
citing many of the concerns raised in the San
“If the court doesn’t have the last word, there is
no protection because majorities can be formed
around prejudice and passion and stirred into
Therese M. Stewart
states of hostility and hate.”
subject to being overturned by a simple majority
vote. That is dramatically different from what the
founders of the federal Constitution and voters
when they revised the state constitution conceived
of the judiciary’s role. If the court doesn’t have the
last word, there is no protection because majorities
can be formed around prejudice and passion and
stirred into states of hostility and hate.”
In May, the court held that the constitutional
guarantees of personal privacy and autonomy
protect “the right of an individual to establish a
legally recognized family with the person of one’s
Francisco city attorney’s brief. BASF’s brief was
one of a handful of briefs accepted to be heard by
the court.
“At the end of the day, Prop 8 is a discriminatory
act against a community that has been mar ginalized,” says Russell S. Roeca, BASF’s president,
cochair of BASF’s Marriage Fairness Task Force,
and a partner at Roeca Haas Hager LLP.
California has more than 100,000 households
headed by gay couples, about a quarter with
children, according to 2000 census data.
THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 37
“If the initiative had said, there will be no equal
protection clause in the constitution, most people
would say the majority can’t do that,” says James
M. Finberg, chair of the Legal Committee for the
Marriage Fairness Task Force and a partner at
Altshuler Berzon LLP. “In a sense this is exactly
what Prop 8 does.”
In the Yes on 8 brief, Kenneth Starr, former
Whitewater special prosecutor and dean of
brief and argue whether Prop 8 violates
the separation-of-powers doctrine under the
state constitution.
Proponents of Prop 8 state in their brief,
“Proposition 8 does nothing to change the
constitutional powers of the several branches of
government. It in no way deprives the judiciary of
its role as the final and ultimate (government)
expositor of what the Constitution means. It
NO ON 8
END DISCRIMINATION
Pepperdine University Law School (he has
declined media interviews), writes, “Proposition 8
is simple. It addresses a single nonstructural
question. . . Quantitatively, it is brief (14 words),
simple, and narrow; it neither deletes nor alters
the texts of other constitutional provisions.”
Qualitatively, “[I]t does not involve a change in
the basic plan of California government, i.e., a
change in its fundamental structure or the
foundational power of its branches, much less far
reaching changes in the nature of California’s basic
governmental plan. . . . It does nothing more than
restore the definition of marriage to what it was
and always had been under California law before
June 16, 2008—and to what the people had
repeatedly willed that it be throughout
California’s history.”
SEPARATION OF POWERS ARGUMENT
When the Supreme Court agreed to hear the
matter in November, it also asked the parties to
38 SPRING 2009
simply makes a substantive change in the
Constitution, which the judiciary is now free to
interpret, as it would any other constitutional
provision.”
IF VALID, IS THE LAW RETROACTIVE?
If the justices decide Prop 8 is constitutional,
there is the question of what happens to the
18,000 plus same-sex marriages performed
between the court’s initial ruling in Marriage Cases
and the passage of Prop 8.
“That issue is a matter of trying to ascertain the
intent behind the initiative measure based on the
language of the ballot arguments,” says Grodin.
To No on Prop 8 lawyers, the answer is clear: “The
law in California is very clear that new laws do
not operate retroactively, unless there is clear
language in the law itself or clear evidence in
extrinsic sources, such as ballot materials,” says
Amy E. Margolin, director of litigation at Howard
Rice Nemerovski Canady Falk & Rabkin,
cocounsel to the City and County of San
Francisco, who represents the seven couples in the
case, pro bono. “Nothing in the text of Prop 8 or
the ballot guide says it invalidates existing
marriages and cancels them out.”
Proponents of Prop 8 argue in their brief,
“Proposition 8’s brevity is matched by its clarity.
There are no conditional clauses, exceptions,
exemptions, or exclusions: ‘Only marriage
between a man and a woman is valid or recognized
in California.’ . . . Its plain language encompasses
both pre-existing and later-created same-sex (and
polygamous) marriages, whether performed in
California or elsewhere. With crystal clarity, it
declares that they are not valid or recognized
in California.”
STATE ATTORNEY GENERAL’S ARGUMENT
When voters initially passed Prop 8, State
Attorney General Jerry Brown said he did not
believe the law was retroactive, so he would not
invalidate the marriages that occurred between
June 16 and November 5. In addition, he stated
he planned to defend Prop 8, as the state’s
chief attorney, but in December, in a surprise
turnabout, he announced he would not. Instead
he asked the court to overturn the measure,
saying “Proposition 8 must be
“In my view,” says Stewart, “this issue overlaps
with the revision issue.”
The brief of the City and County of San Francisco
says, “There is no question that Proposition 8
infringes upon a core zone of judicial power, i.e.,
the power to have the final word on the
inalienable rights of unpopular minority groups.”
The brief cites Justice Kennard’s statements from
Marriage Cases, “. . . and it is the particular
responsibility of the judiciary to enforce those
guarantees.”
BASF’s amicus echoes that sentiment: “This
encroachment on the Courts’ role offends the core
principle of separation of powers that is embedded
in our state’s Constitution.”
THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 39
“If the initiative had said, there will be no equal
protection clause in the constitution, most people
would say the majority can’t do that,” says James
M. Finberg, chair of the Legal Committee for the
Marriage Fairness Task Force and a partner at
Altshuler Berzon LLP. “In a sense this is exactly
what Prop 8 does.”
In the Yes on 8 brief, Kenneth Starr, former
Whitewater special prosecutor and dean of
brief and argue whether Prop 8 violates
the separation-of-powers doctrine under the
state constitution.
Proponents of Prop 8 state in their brief,
“Proposition 8 does nothing to change the
constitutional powers of the several branches of
government. It in no way deprives the judiciary of
its role as the final and ultimate (government)
expositor of what the Constitution means. It
NO ON 8
END DISCRIMINATION
Pepperdine University Law School (he has
declined media interviews), writes, “Proposition 8
is simple. It addresses a single nonstructural
question. . . Quantitatively, it is brief (14 words),
simple, and narrow; it neither deletes nor alters
the texts of other constitutional provisions.”
Qualitatively, “[I]t does not involve a change in
the basic plan of California government, i.e., a
change in its fundamental structure or the
foundational power of its branches, much less far
reaching changes in the nature of California’s basic
governmental plan. . . . It does nothing more than
restore the definition of marriage to what it was
and always had been under California law before
June 16, 2008—and to what the people had
repeatedly willed that it be throughout
California’s history.”
SEPARATION OF POWERS ARGUMENT
When the Supreme Court agreed to hear the
matter in November, it also asked the parties to
38 SPRING 2009
simply makes a substantive change in the
Constitution, which the judiciary is now free to
interpret, as it would any other constitutional
provision.”
IF VALID, IS THE LAW RETROACTIVE?
If the justices decide Prop 8 is constitutional,
there is the question of what happens to the
18,000 plus same-sex marriages performed
between the court’s initial ruling in Marriage Cases
and the passage of Prop 8.
“That issue is a matter of trying to ascertain the
intent behind the initiative measure based on the
language of the ballot arguments,” says Grodin.
To No on Prop 8 lawyers, the answer is clear: “The
law in California is very clear that new laws do
not operate retroactively, unless there is clear
language in the law itself or clear evidence in
extrinsic sources, such as ballot materials,” says
Amy E. Margolin, director of litigation at Howard
Rice Nemerovski Canady Falk & Rabkin,
cocounsel to the City and County of San
Francisco, who represents the seven couples in the
case, pro bono. “Nothing in the text of Prop 8 or
the ballot guide says it invalidates existing
marriages and cancels them out.”
Proponents of Prop 8 argue in their brief,
“Proposition 8’s brevity is matched by its clarity.
There are no conditional clauses, exceptions,
exemptions, or exclusions: ‘Only marriage
between a man and a woman is valid or recognized
in California.’ . . . Its plain language encompasses
both pre-existing and later-created same-sex (and
polygamous) marriages, whether performed in
California or elsewhere. With crystal clarity, it
declares that they are not valid or recognized
in California.”
STATE ATTORNEY GENERAL’S ARGUMENT
When voters initially passed Prop 8, State
Attorney General Jerry Brown said he did not
believe the law was retroactive, so he would not
invalidate the marriages that occurred between
June 16 and November 5. In addition, he stated
he planned to defend Prop 8, as the state’s
chief attorney, but in December, in a surprise
turnabout, he announced he would not. Instead
he asked the court to overturn the measure,
saying “Proposition 8 must be
“In my view,” says Stewart, “this issue overlaps
with the revision issue.”
The brief of the City and County of San Francisco
says, “There is no question that Proposition 8
infringes upon a core zone of judicial power, i.e.,
the power to have the final word on the
inalienable rights of unpopular minority groups.”
The brief cites Justice Kennard’s statements from
Marriage Cases, “. . . and it is the particular
responsibility of the judiciary to enforce those
guarantees.”
BASF’s amicus echoes that sentiment: “This
encroachment on the Courts’ role offends the core
principle of separation of powers that is embedded
in our state’s Constitution.”
THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 39
invalidated because the amendment process
cannot be used to extinguish fundamental
constitutional
rights
without
compelling
justification,” Brown told newspapers.
In response to Brown’s unique argument, Starr
states in his brief, Brown “is inviting this court to
declare a constitutional revolution. His extraconstitutional vision is one of unprecedented
judicial hegemony, a sweeping power vested in the
least-democratic branch that overrides the
precious right of the people to determine how they
will be governed.”
The City and County of San Francisco brief says
Brown’s argument supports their position that
Prop 8 is a revision, not an amendment. “When
you deny fundamental rights to a suspect class,
you are changing equal protection at its core,” says
Stewart. “The equality provision underlies the
fabric of our constitution.”
GOING FORWARD
“For many years, equality and diversity in civil
rights have been a mission of BASF,” says Roeca.
With that legacy in mind, Roeca says the Marriage
Fairness Task Force will continue to meet. Already
the task force has convened with leaders from
religious, lesbian, gay, bisexual, transsexual, and
black communities, discussing how to move
forward. “I’m optimistic,” he adds.
Roeca points to the successes of the task force,
which raised more than $300,000 from nearly 250
lawyers and firms for the No on Prop 8 campaign,
secured an almost unanimous vote of the
Conference of Delegates of California Bar
Associations to support a resolution opposing
Prop 8, organized the most far-reaching coalition
of bar organizations against Prop 8, and created a
presence for its message through media outlets. As
part of this latter effort, James Brosnahan, a
partner at Morrison & Foerster, wrote editorials
for the San Francisco Chronicle and did a YouTube
appearance. “I fully support the No on Prop 8
effort. I have no doubt this issue will get turned
around,” says Brosnahan. “The question is when.”
The justices heard the cases on March 5 and are
required to rule within ninety days.
Nina Schuyler is a lawyer whose first novel, The
Painting, was published in 2004. She is currently
working on her second novel. She can be reached at
ninaschuyler@hotmail.com.
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On January 14, 2009, BASF, along with forty
other bar associations and legal organizations from
across the state, filed an amicus brief with the
California Supreme Court in support of the
petitioners asking to overturn Proposition 8. The
brief stated, “Proposition 8 would substantially
alter California’s ‘preexisting constitutional scheme’
in two important aspects. Proposition 8 would
radically change the definition of a ‘fundamental
right’ as one enjoyed by all individuals to one
enjoyed by some, as decided by the majority of
voters. And Proposition 8 would strip the courts
of their ability to enforce the guarantee of
equal protection with respect to a fundamental
right belonging to a protected class. This en croachment on the courts’ role offends the core
principle of separation of powers that is embedded
in our State’s Constitution.”
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40 SPRING 200938 FALL 2008
THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 41