California Supreme Court on Proposition 8: Analysis and New Litigation

The California Supreme Court has issued its opinion in the three consolidated cases (Strauss v. Horton, S168047; Tyler v. State of California, S168066; City and County of San Francisco v. Horton, S168078) challenging the constitutionality of Proposition 8.   As predictable from our previous post on the oral argument, the court declined to determine proposition 8 was unconstitutional. 

Only Justice Carlos Moreno dissents, based on his interpretation of California's equal protection clause, which is not only distinct from the Fourteenth Amendment, but also

by its nature, inherently countermajoritarian.  As a logical matter, it cannot depend on the will of the majority for its enforcement, for it is the will of the majority against which the equal protection clause is designed to protect.  Rather, the enforcement of the equal protection clause is especially dependent on “the power of the courts to test legislative and executive acts by the light of constitutional mandate and in particular to preserve constitutional rights, whether of individual or minority, from obliteration by the majority.”  (Bixby v. Pierno (1971) 4 Cal.3d 130, 141.)

(Moreno opinion at 4).   In considering the distinction between amendments and revisions which seems crucial to California state constitutional law doctrine, Moreno relies on Raven v. Deukmejian (1990) 52 Cal.3d 336, 341-343, "the one case to invalidate a portion of an initiative on the grounds that it constituted a qualitative revision," even as he notes it is distinguishable:

Our decision in Raven addressed whether a structural change to the Constitution was a revision, but nothing in our opinion suggests that only a structural change can constitute a revision.  To the contrary, our recognition in Raven that altering fundamental rights embodied in the Constitution could “substantially alter the substance and integrity of the state Constitution as a document of independent force and effect” suggests just the opposite.  (Raven, supra, 52 Cal.3d at p. 352.)  Proposition 8 would have a similar effect by emasculating the equal protection clause of the California Constitution as a provision of independent force and effect.  Any protection of a minority group recognized by this court under the equal protection clause of our state Constitution that was not recognized by the United States Supreme Court under the federal Constitution could be abrogated through the initiative process by a simple majority of the voters.

(Moreno opinion at 17-18).

On the retroactivity issue,  Moreno joins the majority to make the opinion unanimous that  "Proposition 8 cannot properly be interpreted to apply retroactively to invalidate lawful marriages of same-sex couples that were performed prior to the adoption of Proposition 8" and to do so "would pose a serious potential conflict with the state constitutional due process clause."  (Majority opinion at 133).

But the California Supreme Court opinion may not necessarily be the last litigation.   Two - - - perhaps unlikely - - - attorneys have filed a lawsuit in federal district court.  As the LA Times reports:

Former U.S. Solicitor General Theodore Olson, a renowned conservative, and David Boies, who opposed Olson in Bush v. Gore in the 2000 fight over the presidential election, cast their collaborative effort to restore the right of gays to marry in California as a moral imperative to correct an injustice. Their suit seeks an immediate injunction on Prop. 8's ban, thereby allowing same-sex marriages to resume while the case makes its way through the federal court system. 

The complaint has two simple claims under the United States Constitution: a due process claim and an equal protection claim. 

RR