Amendment vs. Revision: The Impact on Prop-8

November 20, 2008

The anti Prop-8’ers are attacking the new amendment the only way it can.  Three lawsuits have been brought to the California Supreme Court regarding the process of the Prop-8 initiative.  The opponents of Prop-8 contend that the language defining marriage as between a man and a woman is actually a revision to the Constitution and not an amendment.  Why is that a big deal?  Let me explain:

Via The Volokh Conspiracy:

Under the California Constitution, an initiative can be used for “amendments” but not “revisions”:

[Art. XVIII, § 1.] The Legislature …, two-thirds of the membership of each house concurring, may propose an amendment or revision of the Constitution ….

[§ 2]. The Legislature …, two-thirds of the membership of each house concurring, may submit at a general election the question whether to call a convention to revise the Constitution….

[§ 3]. The electors may amend the Constitution by initiative.

[§ 4]. A proposed amendment or revision shall be submitted to the electors and if approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise.

Ergo: Comparing section 1 with section 3 shows that, while the legislature may either propose an amendment or a revision, the initiative process may only propose an amendment and not a revision. I.e., if Prop-8 is an amendment then a simple majority by the voters is legitimate.  If Prop-8 is a revision then it should never have been put on the ballot; a 2/3 vote by the state legislature would be required.  This is confirmed in Raven v. Deukmejian, 52 Cal. 3d 336 (1990). 

In Raven, the California Supreme Court held that an “amendment” and a “revision” of the state Constitution is defined by a sliding scale hinging on two different factors: Quantitative Change and Qualitative Change to the Constitution.  The larger the change the more likely it is a revision.

1-Quantitative: A large change to the state Constitution would require commissions to “rewrite” portions of the state Constitution.  For example, in the 1960’s the California Constitution was almost 50,000 words; longer than any other state Constitution.  The California legislature commissioned a group to cut it down, which it did.  After the commission, the Constitution was cut down to 21,000 words.  The legislature had to vote on the change because it was so large and was deemed a revision and not an amendment.  In this case, Prop 8 only requires the edition of 14 words to the California Constitution.  It is not a large change and therefore should be seen as an amendment and not a revision.

2-Qualitative: This issue is much more difficult than quantitative. The opponents of Prop 8 make the argument that Prop 8 is discrimination of a “fundamental right” to a “suspect class” of citizens; because the “change” is so important to the Constitution, it should only be revised through legislative avenues.

(a)      Fundamental Right:  I cannot find the case, but marriage in California has been deemed a fundamental right (Loving v. VA) UNLESS stated otherwise. The 9th Circuit left the door open for an abridgment to the fundamental right of marriage; i.e., if otherwise stated.  The people of California stated otherwise on November 4th by a 52/48 margin.


(b)      Suspect Class: I have never found a case which said homosexuals, as a class, are suspect. The closest the Supreme Court has come to calling homosexuals a suspect class was in Romer v. Evans (the Colorado Prop II initiative). In that case, the Supreme Court told the Colorado legislature it could not write a law which disallowed legislation to specifically protect homosexuals (man is that a convoluted sentence). Even though the law was overturned, the Supreme Court admitted to using a rational basis test; most scholars suggest that the Supreme Court used some sort of scrutiny between rational basis and intermediate scrutiny. Rational basis judicial review, the lowest of all judicial reviews, has always been reserved for classes of people which are not suspect in the eyes of the judiciary.  In other words, homosexuals have never been deemed a suspect class by the Supreme Court.  If this case gets to the Supreme Court, it would have to overturn precedence and ignore stare decisis in the process if the Court wanted to call homosexuals a suspect class.

3-Another Argument:  However, the opponents of Prop 8 may make the argument that homosexuals are a “political unpopular group” like the hippies were in US Dept. of Agriculture v. Moreno. However, with the amount of legislation which has passed concerning hate crimes for beating up homosexuals (etc.), I do not know how that argument could be made.  Homosexuals are not a political unpopular group like the hippies or the Black Panthers in the 1960’s. 

Homosexuals are not a suspect class as they argue because very recent precedent cases in which the Supreme Court used a rational basis test when scrutinizing laws regarding homosexuals says so. (Romer and Lawrence).

In Conclusion:  Prop 8 is an amendment because it is both a minor quantitative and qualitative change to the California Constitution; marriage is only fundamental unless otherwise stated, and homosexuals are not a suspect class.

Either way, this is going to be a crazy year or so.




  1. Hello,

    The particularly ironic piece of this matter is the case where the court considers that marriage is defined as a fundamental right AND homosexuals being a suspect class is the in re. marriage case itself.

    Further, as this is a state decision, the 9th circuit does not come into play whatsoever.

    The comment responses to Volokh’s 11/5 posting are quite thoughtful and worth a tight read.

  2. The reason I brought up the 9th Circuit is because they decided the CA case which said marriage was a fundamental right, unless stated otherwise. Because of Erie the 9th Cir opinion is precedence regarding CA marriage rights.

    I am unaware of the case where “the court considers that marriage is defined as a fundamental right AND homosexuals being a suspect class is the in re. marriage case itself”.

    Please educate me with this case.

  3. It’s the “in re Marriage Cases” case that started the whole thing in the first place. As the California ruling is broader as to the fundamental right, it would trump the 9th Circuit, at least in Cali. Here’s the meat of the majority opinion, lifted from wikipedia (http://en.wikipedia.org/wiki/In_re_Marriage_Cases)

    In the majority decision:

    [U]nder this state’s Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process.[18]

    [S]trict scrutiny (…) is applicable here because (1) the statutes in question properly must be understood as classifying or discriminating on the basis of sexual orientation, a characteristic that we conclude represents — like gender, race, and religion — a constitutionally suspect basis upon which to impose differential treatment, and (2) the differential treatment at issue impinges upon a same-sex couple’s fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple.[19]

    [T]he exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples.[20]

    “[T]he right to marry is not properly viewed simply as a benefit or privilege that a government may establish or abolish as it sees fit, but rather that the right constitutes a basic civil or human right of all people.”[21]

  4. The reason for the funny name “in re marriage cases” is, as you may recall, the Court amalgamated several suits into one.

  5. Thanks for that. I will study up on the “In re Marriages” case.

  6. That is interesting. I was not aware of the existence of the In re Marriages case and it was pretty recent. It will be an interesting framework to see how this plays out legally. The court will likely rule on the wording of proposition 8 in making its determination.

  7. Reading the CA SCt’s reasoning behind using strict scrutiny is horrible. I do not know how that passes judicial muster. I guess that’s why it was a 4-3 vote.

    I knew of the case, since I was in Con Law II when it came dow, but I did not know what it was called.

    The CA SCt sure did make a mess out of this situation. I wish we could just sit down and figure outEqual Protection and Due Process law. There needs to be some sort of uniformity.

  8. The connection to the Jim Crow laws was a real stretch in my opinion. It is going to be difficult for legislators to write around the case

  9. Actually, Yossarian, it’s pretty easy to write around the case: with a revision.

    I think it’s clear that the pro Prop 8’s are in trouble IF the CaSC looks beyond Prof. Volokh’s rather narrow vision of the scope of the revision vs. amendment. Merits of the case aside, I think, given what this same court has already said, the justices will and will have to be convinced to reverse the earlier decision that overruled prop 22.

    Which could lead to an even weirder situation: Suppose Prop 8 is upheld and is not retroactive, which, as I understand it, is the most likely scenario. The court has created another problem for CA: there are two classes of same sex couples: one married, one not. By itself that is problematic, but not fatally so. It gets worse when, say, a same-sex, married, couple from MA or CT move to CA. California would be in an odd situation again, whereby it would (likely) be forced to recognize same-sex marriages performed outside of California to treat the pre-Prop 8 marriages and the out of state marriages equally, while not allowing gay residents to get married in CA. I know when Massachusetts’ same-sex marriages started there was clear and immediate consensus that civil unions from other states would not be recognized, only marriages would be and this question was raised, but avoided due to the super majority legislative defeat of an amendment.

    So, I guess what my point is on that last part: is it a Pyrrhic victory for the court to uphold a non-retroactive Prop 8 that, to me, anyway, would allow same-sex marriages (noun) in California, but not same-sex marriage (verb)?

  10. Sailormouth,
    Very well written. I agree with pretty much everything you said. I am still perplexed how the CA SCt could throw around something so sacred as Strict Scrutiny in a case of first impression. Why not look to what other states have done, or even better what the US SCt has done in past cases. It was an opinion waiting to be overturned at some point.

    I agree that it cannot be retroactive. The CA SCt made that problem by denying the injunction until after the Nov 4th election. They will have to live with that one.

  11. The reason why the states are not uniform is because they all have their own constitutions.

    The recent Connecticut decision looked at similar state constitutional questions, and reviewed all of the sister state precedents.

    The CT court decided that the NY dissenting opinion on their marriage equality case was logical and used the correct application of scrutiny, etc. and that California also followed the correct procedure.

    So they considered both CT and US federal case law that had guidelines for determining, and most states failed to use the correct criteria correctly.

    Also, the CA Supreme Court only recognizes rational basis review and strict scrutiny; the US Supreme Court has been criticized for its case law on intermediate scrutiny. There’s no equivalent in CA.

    CT, meanwhile, does, and they made their decision on that basis.

    I’m not sure if the current petitions for a writ are a first impression case.

    The Official Proponents of Proposition 8 (as they are identified in court proceedings) are arguing so far that the Proposition 8 opponents are relying on “novel” interpretations and arguments.

    Lambda Legal, on the other hand, mentioned in their recent conference call that there are 9 examples in case law to strike down an amendment as a revision. 6 failed, and 3 won. They will argue that the cases with similarity to theirs should prevail, which would make 4/10 or almost half of such cases favorable for petitioners.

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  13. Having read up on this issue extensively, as well as the relevant case law, I would have to conclude that Proposition 8 is indeed a legitimate amendment.

    Initiative constitutional amendments have been used to legalize Indian gaming, impose legislative term limits, forbid the state from engaging in racial or gender discrimination in employment, and even reinstate the death penalty.

    The last two are especially relevant. An initiative amendment added Section 31 to the Declaration of Rights, forbidding the state from discriminating against “any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” In effect, it was an expansion of the scope of the equal protection clause. If revisions were necessary to affect the equal protection clause, then this section would be invalid and there would be no explicit basis in the state constitution for equal protection in public employment, public education, or public housing.

    An initiative amendment added Section 27 to the Declaration of Rights, which constitutionalized the death penalty. It was added after the Supreme Court had ruled “that capital punishment is both cruel and unusual as those terms are defined under article I, section 6, of the California Constitution, and that therefore death may not be exacted as punishment for crime in this state.” In that same decision, it reiterated that “The cruel or unusual punishment clause of the California Constitution, like other provisions of the Declaration of Rights, operates to restrain legislative and executive action and to protect fundamental individual and minority rights against encroachment by the majority.” It is noted that the cruel and unusual punishment clause applies to all persons subject to California law; the only dispute in questions over cruel and unusual punishment is whether the punishment is cruel or unusual. Section 27 was challenged as an illegitimate revision in People v. Frierson , the Court rejected that challenge. Thus, a fundamental right found in the state constitution’s Declaration of Rights was affected by an initiative amendment.

    The decision Raven v. Deukmejian did invalidate an initiative amendment- but the amendment placed drastic limits on state courts’ ability to interpret the rights of criminal defendants, limiting state interpretation of state constitutional protections to the U.S. Supreme Court’s interpretation of analogous U.S. constitutional protections. By contrast, Prop. 8 is extremely limited in scope- it only defines one word. State courts continue to have the power to apply equal protection on the basis of sexual preference and orientation, including whether same-sex couples, including those who got “married” before Prop. 8’s passing, are constitutionally entitled to tax, inheritance, power-of-attorney, hospital visitation, and other benefits married couples enjoy. They could even rule on whether or not divorce laws apply to same-sex couples- Prop. 8 did not define divorce. And last but certainly not least, state courts can rule on whether or not Prop. 8 is in compliance with the United States Constitution.

    To rule Prop. 8 as a revision would effectively state that a revision is required to define marriage, but an amendment is sufficient to define the applicability of cruel and unusual punishment over the death penalty- a life or death issue.

    And this does not even address the political considerations.

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