Posted by Eugene Volokh:
Is California's Repeal of Same-Sex Marriage an Unconstitutional "Revision" by
Initiative?
http://volokh.com/archives/archive_2008_11_02-2008_11_08.shtml#1225923130
I thought I'd reprise my post on this subject as well, as well as link
to [1]my colleague Professor Bainbridge's post on the initiative --
Prof. Bainbridge takes the same view that I do on the revision
question. Here's my earlier post, which I still think is correct.
1. Under the [2]California Constitution, the 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.
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. And Raven v.
Deukmejian, 52 Cal. 3d 336 (1990), confirmed this.
2. The proposal to allow only same-sex marriages is likely to be found
to be only an amendment, not a revision. Raven struck down an
initiative that would bar the state courts from interpreting the state
constitution in a more defendant-friendly way than the federal
constitution is interpreted, as to a wide range of constitutional
provisions. (Generally speaking, state prosecutions must comply with
both the state constitution's bill of rights and the federal bill of
rights, and while states often interpret state constitutional rights
the same way as the U.S. Supreme Court has interpreted the analogous
federal right, they also have the power to interpret the state rights
more broadly.)
The court stressed that the proposal made "such far reaching changes
in the nature of our basic governmental plan as to amount to a
revision," because it "involved a broad attack on state court
authority to exercise independent judgment in construing a wide
spectrum of important rights under the state Constitution," as opposed
to only dealing with one specific right:
In effect, new article I, section 24, would substantially alter the
substance and integrity of the state Constitution as a document of
independent force and effect. As an historical matter, article I
and its Declaration of Rights was viewed as the only available
protection for our citizens charged with crimes, because the
federal Constitution and its Bill of Rights was initially deemed to
apply only to the conduct of the federal government....
Thus, Proposition 115 not only unduly restricts judicial power, but
it does so in a way which severely limits the independent force and
effect of the California Constitution....
It is true, as the Attorney General observes, that in two earlier
cases we rejected revision challenges to initiative measures which
included somewhat similar restrictions on judicial power. In In re
Lance W., 37 Cal.3d 873, 891 (1985), we upheld a provision limiting
the state exclusionary remedy for search and seizure violations to
the boundaries fixed by the Fourth Amendment to the federal
Constitution. In People v. Frierson, 25 Cal.3d 142, 184-187 (1979),
we upheld a provision which in essence required California courts
in capital cases to apply the state cruel or unusual punishment
clause consistently with the federal Constitution.
Both Lance W. and Frierson concluded that no constitutional
revision was involved because the isolated provisions at issue
therein achieved no far reaching, fundamental changes in our
governmental plan. But neither case involved a broad attack on
state court authority to exercise independent judgment in
construing a wide spectrum of important rights under the state
Constitution....
3. And the two cases that I've found in other states that dealt with
the same question have likewise concluded that an opposite-sex-only
marriage initiative was an amendment, not a revision: [3]Bess v. Ulmer
(Alaska Supreme Court, 1999), and [4]Martinez v. Kulongoski (Oregon
Court of Appeals, 2008). Bess, in particular, expressly applied
California precedents (though with a minor change that doesn't seem
relevant here), and concluded that the opposite-sex-only marriage
initiative was an amendment, not a revision: "Few sections of the
Constitution are directly affected, and nothing in the proposal will
'necessarily or inevitably alter the basic governmental framework' of
the Constitution."
4. That the proposed amendment would cut back on the scope of a state
constitutional right shouldn't affect this analysis, or otherwise make
the amendment unconstitutional. As the two cases cited and
distinguished in the Raven excerpt quoted above show, the amendment
process may be used to cut back on the scope of a state constitutional
right as well as to add to the scope of such a right. (State
constitutional amendments of course can't be used to cut back on the
scope of a federal constitutional right, but the California Supreme
Court same-sex marriage decision rested solely on the state
constitution.) One point of the state constitutional amendment process
is to make sure that the scope of state constitutional rights is
decided by the voters in the state, not just by the seven voters on
the state supreme court, especially since those seven voters
themselves derive their constitutional authority from a document
enacted by a majority vote of the states' voters.
References
1.
http://www.stephenbainbridge.com/punditry/comments/proposition_8_passes_what_now/
2. http://www.leginfo.ca.gov/.const/.article_18
3.
http://weblinks.westlaw.com/Search/default.wl?RP=%2FWelcome%2FFrameless%2FSearch%2Ewl&n=1&bhcp=1&db=AK%2DCS%2DWEB&method=TNC&query=TI%28%28%22bess%22%29+and+%28%22ulmer%22%29%29&RLT=CLID%5FQRYRLT94221226&RLTDB=CLID%5FDB94221226&search=Search&SP=AKCS%2D1000&spolt=Return+to+the+Alaska+Case+Law+Service&sposu=http%3A%2F%2Fgovernment%2Ewestlaw%2Ecom%2Fakcases&spou=http%3A%2F%2Fgovernment%2Ewestlaw%2Ecom%2Fakcases&ssl=n&strRecreate=no&submit=Search&sv=Split&tempinfo=case&title1=bess&title2=ulmer&RS=WEBL8.06&VR=2.0&SPa=AKCS-1000
4. http://159.121.112.45/A130818.htm
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
