Bench Memos

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Challenge to Proposition 8


In an order today, the California supreme court agreed to hear legal challenges to Proposition 8, which enshrines traditional marriage in the state constitution and overrides the state supreme court’s terrible decision from last May that concocted a right to same-sex marriage.  The court has invited briefing on three issues:  (1) “Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?”  (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?”

I don’t know what significance, if any, to assign to the court’s procedural step.  The three dissenters from the May marriage decision joined the court’s order, so that would suggest that the order itself doesn’t signal any predisposition on the court’s part.  Further, Justice Kennard, who joined the majority ruling in May, voted to deny the petitions without prejudice, so that would seem to suggest that she’s not eager to take the extraordinary action of invalidating Proposition 8.  But all of this is reading tea leaves from afar.

Some very quick thoughts on the merits of the issues:  On issue 1, Eugene Volokh and Stephen Bainbridge have explained why they believe Proposition 8 is an amendment, not a revision; Dale Carpenter finds the question a closer one.  

I don’t see how issue 2 has any independent force:  even if one were to assume that Proposition 8 somehow implicates separation of powers, how can a constitutional amendment violate the constitution (unless, say, the constitution itself specifies that its separation of powers is unamendable)? 

On issue 3, I think that there’s a lot of confusion about prospectivity versus retroactivity. Proposition 8 states: “Only marriage between a man and a woman is valid or recognized in California.”  From the effective date of Proposition 8 forward, that rule ought to govern state actors prospectively, both as to same-sex marriages performed before its effective date and any purported to be performed after.

I make no predictions as to how the court will actually rule, as a court that can render the May marriage decision is capable of any sort of judicial malfeasance.

Tags: Whelan


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