Lots of misconceptions about what CASC did yesterday.
Here is the opinion and some excerpts
http://www.courtinfo.ca.gov/opinions/documents/C058306.PDFIn addressing the issues now presented in the third chapter of this narrative, it is important at the outset to emphasize a number of significant points. First, as explained in the Marriage Cases, supra, 43 Cal.4th at page 780, our task in the present proceeding is not to determine whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution. Regardless of our views as individuals on this question of policy, we recognize as judges and as a court our responsibility to confine our consideration to a determination of the constitutional validity and legal effect of the measure in question. It bears emphasis in this regard that our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values.
Something to point out is this is the same court that initially ruled that CA statute against same sex marriage was invalid.
The court is making the issue clear that they are NOT deciding if the Prop is constitutional or even if it is a good idea. The petitioner did not ask that question and NEITHER side presented arguments to that effect. A court that passes ruling based on questions never asked is incredibly dangerous.
Instead, the principal issue before us concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process so as to incorporate such a limitation as an explicit section of the state Constitution.
The question before the court was the process not the prop. Many people were mislead by the media and even DU but the constitutionality of the direct effects of Prop8 was never at issue here. Sorry if that is a letdown but that is the truth. The petitioner made a calculated decision to keep the scope limited. Even if the court ruled in favor of the petitioner it STILL wouldn't have made Prop8 unconstitutional. It simply would mean the method used (ballot initiative) was invalid for revising the Constitution. Previous case law shows initiatives can only be used for amending not revising the Constitution. The Prop 8 group could still revise the Constitution but that would require a 2/3 vote of both houses and then 50% of general population. Considering how close the vote was and how divisive the issue it is unlikely they could get that support. So it would effectively kill Prop8 without ever considering Prop8.
In considering this question, it is essential to keep in mind that the provisions of the California Constitution governing the procedures by which that Constitution may be amended are very different from the more familiar provisions of the United States Constitution relating to the means by which the federal Constitution may be amended. The federal Constitution provides that an amendment to that Constitution may be proposed either by two-thirds of both houses of Congress or by a convention called on the application of two-thirds of the state legislatures, and requires, in either instance, that any proposed amendment be ratified by the legislatures of (or by conventions held in) three-fourths of the states.
In contrast, the California Constitution provides that an amendment to that Constitution may be proposed either by two-thirds of the membership of each house of the Legislature or by an initiative petition signed by voters numbering at least 8 percent of the total votes cast for all candidates for Governor in the last gubernatorial election, and further specifies that, once an amendment is proposed by either means, the amendment becomes part of the state Constitution if it is approved by a simple majority of the voters who cast votes on the measure at a statewide election.
As is evident from the foregoing description, the process for amending our state Constitution is considerably less arduous and restrictive than the amendment process embodied in the federal Constitution, a difference dramatically demonstrated by the circumstance that only 27 amendments to the United States Constitution have been adopted since the federal Constitution was ratified in 1788, whereas more than 500 amendments to the California Constitution have been adopted since ratification of California’s current Constitution in 1879.
Sadly this is the underlying problem. Constitutions are only as good as the protections put in place. CA constitution is extremely weak because it can be modified so easily. Allowing the "mob" to propose an amendment and then allowing the same 50% "mob" to ratify it is not check & balance. Over 5000 amendments have been proposed for US Constitution and only 27 have been ratified, that’s about 0.5%. The average time for ratification is 2.5 years which gives plenty of time for people to be informed and legal challenges to be made in advance. Compared to US Constitution, CA provides very little protection for minorities against majority abuses.
At the same time, as numerous decisions of this court have explained, although the initiative process may be used to propose and adopt amendments to the California Constitution, under its governing provisions that process may not be used to revise the state Constitution. (See, e.g., McFadden v. Jordan (1948) 32 Cal.2d 330; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208; Raven v. Deukmejian (1990) 52 Cal.3d 336.) Petitioners’ principal argument rests on the claim that Proposition 8 should be viewed as a constitutional revision rather than as a constitutional amendment, and that this change in the state Constitution therefore could not lawfully be adopted through the initiative process.
Now we are getting to the legal nuts and bolts. Previous case law has found the initiative process can amend but not revise the constitution. The petitioner chose to centralize their case around one simple argument:
Prop8 revises not amends the Constitution. They drew a line in the sand.
If the courts agree that Prop8 revised the CA Constitution then the method used for Prop8 (public initiative) is invalid and it gets thrown out WITHOUT the court ever looking at the Constitutionality of its effects. This was a calculated move. Keep it very black & white and force the courts hand with a narrow scope. Sadly it didn't work out but the petitioner chose the scope. The state can only respond to questions posed by the petitioner. The petitioner never proposed that the result of Prop8 was unconstitutional. The petitioner never argued that or presented evidence to support that. The state was never allowed to present arguments against that assertion. To believe the courts could answer a question not asked is simply illogical. The courts have NEVER had that power. Judges have been removed for basing decisions on facts not entered into evidence. It is a cornerstone of our legal system. The case never was and never was going to be decided on the issue many people thought it was about.
In analyzing the constitutional challenges presently before us, we first explain that the provision added to the California Constitution by Proposition 8, when considered in light of the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757 (which preceded the adoption of Proposition 8), properly must be understood as having a considerably narrower scope and more limited effect than suggested by petitioners in the cases before us. Contrary to petitioners’ assertion, Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right of privacy and due process that was analyzed in the majority opinion in the Marriage Cases — that is, the constitutional right of same-sex couples to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage” (Marriage Cases, supra, 43 Cal.4th at p. 829). Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion. Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.
Here is the reasoning. The court found that Prop8 doesn't limit existing rights, it simply limits the name "marriage" (courts opinion not mine). If Prop8 had restricted civil unions it would have been found to be revising (not amending) the constitution. The courts found that using the term "civil union" instead of "marriage" (and limiting the term “marriage” to only opposite sex couples) does not rise to unequal protection under the law. As noted in the first quote the court isn’t looking at the benefit of such policy, or even if it is wise.
Even the dissenting judge followed this line of reasoning. He had to because that was the only question before the court. He didn't rule on the Constitutionality of effects of Prop8 he simple reached the conclusion that limiting the term "marriage" did modify the Constitution rather than amend it. It did so because in his opinion restricting the term “marriage” is unequal protection under the law. In doing so a revision instead of an amendment is not valid via the initiative process.
Many people were disappointed because they were hoping for an opinion that simply was not possible from this court. The courts scope is limited by the petitioners’ question. In this case the question was ONLY “does prop 8 amend or revise the constitution?” Since the CA constitution provides no existing protection for the term "marriage" and “civil unions” (not prohibited under Prop8) can provide all the benefits of marriage without the term “marriage” the courts found it was an amendment not a revision. That is the ONLY thing the court did yesterday.
Please don’t flame me. None of this is my personal opinion. Personally I think the petitioner’s lawyer made a bad calculated bet. I think a lawsuit that “separate but equal is not equal” directly to the Ninth Circuit court as a civil rights violation under the 14th amendment would have been a better route. This is all hindsight though, if the plantiff had been successful the lawyer would look like a genius by killing Prop8 without every arguing merits of Prop8.
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