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Frank Schubert


The California Supreme Court has issued its much anticipated ruling on the validity of Proposition 8, the constitutional amendment defining marriage as being between a man and a woman. The Court, by an overwhelming 6-1 vote, upheld the constitutionality of Proposition 8. Many people view the ruling as being primarily about the wisdom of allowing gay marriage in California. But whether you agree or disagree with gay marriage, the ruling was an important one for those who support the right of voters to initiate laws and challenge governmental decisions.

At the core of the challenge to Proposition 8 was a challenge to California’s initiative process itself. Opponents of Prop 8 argued that this plain-language 14-word amendment constituted an illegal “revision” of the state Constitution that only the Legislature can initiate. Prior Court rulings had defined constitutional revisions to be those proposals that resulted in a fundamental restructuring of governmental power. How, one might wonder, does a 14 word proposal that simply inserts the age-old understanding of the definition of marriage constitute a fundamental restructuring of government? Fortunately, the Supreme Court said, “it doesn’t.”

The more pernicious and far-reaching challenge to Proposition 8 came form the man who was duty-bound to uphold it, Attorney General Jerry Brown. Brown, who actively opposed Prop 8 and went to great lengths to help opponents by rejiggering his official wording of the measure, had to admit that the measure was not an illegal revision of the constitution. But he concocted a whole new theory, one never before articulated in the history of California jurisprudence, that even though Proposition 8 was a validly adopted constitutional amendment, it should nevertheless be invalidated. The Attorney General’s novel theory, one that had no case-support whatsoever, was essentially a natural law theory that the right of gay couples to liberty under the “inalienable rights” clause of the state constitution trumped the right of the people to define marriage in the constitution.

Essentially, the Attorney General urged the Supreme Court to give itself extra-constitutional authority that supersedes the people’s rights. Never mind that the right to control the constitution is inherently reserved by the people. It is not a right granted to the people, it is expressly reserved by the people. Or the fact that the very existence of the branches of government and the Supreme Court itself derives from the people’s inherent right to structure their government. The Attorney General argued that once the Supreme Court had inferred a constitutional right, the people would be effectively prohibited from addressing that right directly in the constitution. This would, for example, mean that when the Rose Bird Court threw out California’s death penalty on the grounds that it violated the rights of first-degree murderers, the people would be prevented from reinstating the death penalty, which they did shortly after the Bird Court ruling.

My initial reaction when I read his filing was that the Attorney General had simply invented an argument to support a pre-destined political conclusion designed to curry favor with the gay elite. However, he made it clear in public comments that he sincerely believed this new novel theory, which even the opponents of Prop 8 had not thought of, was a legitimate challenge to Propostion 8.  So, how did the Court react to his opposition?

First, if it was a sincere argument, it was hard for him to articulate it. During the oral argument in March, his Deputy’s attempt to argue the case before the Supreme Court was called by one gay blogger, “embarrassingly inept.” That’s because there is no support for the Attorney General’s theory anywhere in California case law. Justice Joyce Kennard hit the nail on the head, observing that the Attorney General seemed to be arguing that the Court invalidate constitutional amendments “willy nilly” whenever they conflicted with the opinions of the justices.

The 6-1 majority decision issued on Tuesday wasn’t particularly kind to the AG’s argument, calling it “fundamentally flawed on a number of levels.” It says that the natural-law theory relied upon by the AG “has been discredited for many years.” The decision wisely resisted the Attorney General’s pleadings to create an extra constitutional role for the Supreme Court, saying, “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.”

The gay marriage debate is far from over, but the proper forum for the resolution of that debate is before the electorate, not in concocting twisted legal theories to get to an end result. Indeed, opponents of Prop 8 – who, having failed in their argument that this issue was an illegal attempt to amend the constitution, are now pledging to do exactly that – by enacting a new constitutional amendment to redefine marriage yet again. That is their absolute right, in part because they and their friend, the Attorney General, failed in their collective efforts to radically infringe on the rights of the people to decide what their constitution does, and does not, include.

That is what the opinion of the California Supreme Court on Prop 8 really meant.


  1. Says:

    You should have commented also on the court’s stupid, politically motivated decision to allow existing same-sex “marriages” to be considered valid.

    First, the very wording of the amendment does not allow for this. It defines what a marriage is, and same-sex “marriage” is definitely not in accord with that definition.

    Second, don’t forget how those came about. Cal. voters passed Prop 22 defining marriage as between a man and a woman in response to the lefty Mass. Supreme Court decision that started this. Then, SF Mayor Gavin Newsome allowed “marriage” licenses to be issued to homosexuals. Taken to court, the Cal Supremes went stupidly liberal. That is what prompted Prop 8. Those “marriages” that took place in the interim are not valid and never were.