Today's California Supreme Court decision did not concern gay marriage and equal protection directly; instead, the issue was self-governance itself. How can Californians amend their state Constitution?
[T]he 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.
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.
In a sense, petitioners’ and the Attorney General’s complaint is that it is just too easy to amend the California Constitution through the initiative process. But it is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it. If the process for amending the Constitution is to be restricted — perhaps in the manner it was explicitly limited in an earlier version of our state Constitution, or as limited in the present-day constitutions of some of our sister states — this is an effort that the people themselves may undertake through the process of amending their Constitution in order to impose further limitations upon their own power of initiative.
However, while 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. And what the heck does that mean? According to the Court today, citizen initiative to amend the California Constitution can do anything except "change ... the basic governmental plan or framework embodied in the preexisting provisions of the California Constitution."
Taking into consideration the actual limited effect of Proposition 8 upon the preexisting state constitutional right of privacy and due process and upon the guarantee of equal protection of the laws, and after comparing this initiative measure to the many other constitutional changes that have been reviewed and evaluated in numerous prior decisions of this court, we conclude Proposition 8 constitutes a constitutional amendment rather than a constitutional revision.
In explaining and relying upon the circumstance that Proposition 8 exclusively affects access to the designation of "marriage" and leaves intact all of the other very significant constitutional protections afforded same-sex couples under the majority opinion in the Marriage Cases, we emphasize that we are not in any way suggesting that the change embodied in Proposition 8 is unimportant or insignificant. In considering the amendment/revision distinction embodied in the California Constitution, however, it is crucial to understand that the amendment process never has been reserved only for minor or unimportant changes to the state Constitution. In this regard, it is useful to keep in mind that (1) the right of women to vote in California, (2) the initiative, referendum, and recall powers, (3) the reinstatement of the death penalty, (4) an explicit right of privacy, (5) a substantial modification of the statewide real property tax system, and (6) legislative term limits — to list only a very few examples — all became part of the California Constitution by constitutional amendment, not by constitutional revision.
Thus, it is clear that the distinction drawn by the California Constitution between an amendment and a revision does not turn on the relative importance of the measure but rather upon the measure’s scope: as we have explained, only if a measure embodies a constitutional change that is so far reaching and extensive that the framers of the 1849 and 1879 Constitutions would have intended that the type of change could be proposed only by a constitutional convention, and not by the normal amendment process, can the measure properly be characterized as a constitutional revision rather than as a constitutional amendment.
As to what I'll call the Carolene No. 4 objection of those challenge Prop 8 (and leave for others to explain in the Comments), the Court concludes that precedent constrains it from viewing that as a limit on citizen initiative rights:
Petitioners contend, however, that even if Proposition 8 does not affect the governmental plan or framework established by the state Constitution, the measure nonetheless should be considered to be a revision because it conflicts with an assertedly fundamental constitutional principle that protects a minority group from having its constitutional rights diminished in any respect by majority vote. Petitioners, however, cannot point to any authority supporting their claim that under the California Constitution, a constitutional amendment — proposed and adopted by a majority of voters through the initiative process — cannot diminish in any respect the content of a state constitutional right as that right has been interpreted in a judicial decision. As we shall see, there have been many amendments to the California Constitution, adopted by the people through the initiative process in response to court decisions interpreting various provisions of the California Constitution, that have had just such an effect.
That petitioners’ proposal would mark a sharp departure from this court’s past understanding of the amendment/revision dichotomy is further demonstrated by the circumstance that under petitioners’ approach, the people would have the ability — through the initiative process — to extend a constitutional right to a disfavored group that had not previously enjoyed that right, but the people would lack the power to undo or repeal that very same extension of rights through their exercise of the identical initiative process. Thus, for example, had this court rejected the constitutional challenges to the existing marriage statutes in its decision in the Marriage Cases, and had the people responded by adopting an initiative measure amending the privacy, due process, and equal protection provisions of the state Constitution to guarantee same-sex couples equal access to the designation of marriage, that measure would be viewed as a constitutional amendment that properly could be adopted through the initiative process. But if an initiative measure thereafter was proposed to repeal those recently adopted changes to the state Constitution, that measure, under petitioners’ approach, would be designated a constitutional revision, and the people would be powerless to adopt that change through the initiative process. Again, neither the history of the provisions governing the making of changes to the California Constitution, nor the many past cases interpreting and applying those provisions, support petitioners’ assertion that the amendment/revision distinction properly should be understood as establishing such a "one-way street" or as mandating such a seemingly anomalous result.
In a somewhat related vein, petitioners additionally maintain that Proposition 8 cannot be viewed as a constitutional amendment rather than as a revision because, should this court so hold, there would be nothing to prevent a majority of California voters from adopting future measures designed to carve out still more exceptions to other fundamental rights, leading to a situation in which the state constitutional rights of any and all disfavored minority groups could be entirely obliterated. The "slippery slope" mode of analysis reflected in this argument, however, finds no support in any of the numerous prior California decisions that have considered the question whether other proposed constitutional changes constituted a constitutional amendment or a constitutional revision.
Look: I'm not a scholar of California law, but this (mostly) makes sense to me as a matter of structural analysis: the California Constitution allocates We, The California People large powers of self-governance, and (as opposed to the federal constitution) they have a large and powerful role to play in an ongoing conversation with the courts, the legislature and the Governor in the shape of constitutional governance. Given this structure, the majority goes, it's not for courts to say what The People shouldn't do with that power; the problem is the scope of the power itself.
The whole point of having rights safeguarded by a Constitution interpreted by an independent judiciary is that some things are so fundamental that they ought not be left to the caprice of a fleeting majority vote -- if the People wants to amend the Constitution (at least, insofar as most of us understand what a "constitution" is supposed to do), it ought to be a more serious and onerous process than a one-day 50%-plus-one vote. One wonders what makes it a constitution if it is so easily amendable. Would the Miranda decision have survived a citizen initiative vote in its wake? Brown v. Board of Education?
No, I don't like the outcome of this decision one bit. But this conversation -- between the legislature, the courts, the executive branch and the People -- is far from over, as the California Supreme Court acknowledges. Indeed, the fight to repeal Prop 8 has already begun ...