Help! My constitution is broken. How do I fix it?
With the narrow passage of California’s Proposition 8, which amends the California Constitution to limit legally recognized marriages to those between men and women, a socially progressive minority of voters quickly became a band of vocal dissidents. Protests have become a daily occurrence throughout the state. Internet petitions asking Governor Schwarzenegger to overturn the amendment have begun to circulate. Conversations among the proposition’s opponents quickly turn to the subject.
The Proposition 8 opponents generally seem to cling to the hope of some sort of intervention, be it from the Governor or the Supreme Court. These hopes point to a lack of general understanding, however, of the legal implications of a constitutional amendment and have prompted me to put together a quick and probably oversimplified tutorial on constitutions and the effects of such an amendment.
To understand the affect of an amendment to the California Constitution and the likelihood of federal intervention, it helps to first understand the California Constitution’s relationship to the Federal Constitution.
The Federal Constitution has two distinct purposes that are of interest to this discussion. First, it creates a set of federal rules and rights that must be adhered to by both the federal and state governments. The Equal Protection Clause of the Fourteenth Amendment, for example, prevents states from denying “any person within its jurisdiction the equal protection of the laws.” Protecting Proposition 8 protesters as I write, the First Amendment prevents the federal government from passing laws “abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.”
In addition to laying out a set of primary rules and rights, the Federal Constitution also establishes a balance of power between the federal and state governments. It accomplishes this balance by granting only specifically identified powers to the federal government. All federal authority – every federal regulation, law, or legal proceeding – must be based upon one of these grants of power. One example of such a grant of power is the Article 1 Commerce Clause which provides Congress with the power to “regulate commerce with foreign nations, among the states, and with the Indian tribes.” This Commerce Clause grant of power is the basis for the vast majority of federal laws and regulations enacted by Congress. And while the federal government is given the primary right to pass laws and govern with respect to the powers specifically identified by the Constitution, all other powers to govern are exclusively reserved for the states.
While the Federal Constitution therefore limits the role of the federal government, it at the same time establishes itself as “supreme law of the land,” which is another way of saying the Constitution is the ultimate trump card. The Congress, the President, and the federal courts must all act consistent with the rules and rights established by the Federal Constitution. Neither federal nor state laws may violate these rules and rights. State constitutions may likewise not grant or deny rights that are at odds with the rights granted by the Federal Constitution. And to the extent that any of them stray from the edicts of the all controlling document – they are wrong.
Whether any government act or action is in violation of the Federal Constitution is a determination to be made by the federal courts with the Supreme Court as the ultimate and guiding authority. And why do the federal courts make these determinations and the Supreme Court review them? You guessed it – because the Federal Constitution says so.
State constitutions can be thought of as the state level equivalents of the Federal Constitution. In fact, many state constitutions are simply pared down versions of the Federal Constitution, mirroring its structure, many of its provisions and even using much of the same language. The California Constitution, for example, also includes an Equal Protection Clause. And just as the Federal Constitution establishes the supreme law of the United States, state constitutions establish the supreme law of the state that they govern by enumerating a set of rules and rights that the governor, state congress, state courts and state laws must adhere to.
But what happens if we don’t like the supreme law of the land or state? Are the current citizens indefinitely stuck with these ultimate authorities drafted by our predecessors? No. Both the Federal Constitution and state constitutions are often referred to as “living, breathing documents” due to their ability to be amended. By amending the constitution, the current citizenry is able to clarify or even overturn previous constitutional directives.
The process for amending the constitutions is laid out within the constitutions themselves and the difficulty of amending a constitution can therefore vary from one to the next. The Fifth Article of the Federal Constitution, for example, allows constitutional amendments to be proposed by a two-thirds vote of Congress or through two-thirds of the state legislatures requesting a national convention. Once proposed, 75% of the states must ratify the amendment in order for it take effect. Article 18 of the California Constitution allows two thirds of the State Congress to propose amending the constitution, but also allows a much simpler method as well – voter initiative. Under the California Constitution, California citizens can propose an amendment to their constitution by presenting the secretary of state with a petition signed by a group of voters representing at least 8% of the total number of voters that participated in the last gubernatorial election. Once proposed, the voter initiative need only receive a majority of votes in the next general election. This relatively simple method of amending the constitution led to more than 500 amendments between 1911 and 1986 and has made California’s Constitution one the longest such documents in existence. The Federal Constitution, by contrast, has only been amended only 27 times since its adoption in 1787.
With this framework in mind, lets consider the Proposition 8 saga. In 2000, California voters passed Proposition 22, a law stating that “only marriage between a man and a woman is valid and recognized in California.”
Proposition 22 was soon thereafter challenged as violating the California Constitution. This challenge was brought before the California state courts because, just as the Federal Constitution charges the federal courts with its interpretation and administration, the California Constitution assigns the same duties to the California state courts. The state lawsuit that was filed and that eventually found its way to the ultimate authority on interpreting the California Constitution – the California Supreme Court. The lawsuit’s plaintiff argued that the Proposition 22 law violated the Equal Protection Clause of the California Constitution by claiming that forbidding same sex marriage denies homosexual citizens the same marriage rights and protections that heterosexual citizens enjoy. In a 4-3 decision the justices of the California Supreme Court agreed with the plaintiff and struck down the law in May 2008.
With this decision of the California Supreme Court, opponents of same-sex marriage were left with few options. They could hope for a later decision of the California Supreme court overturning this close decision, which would be the California Supreme Court’s way of saying “whoops, our bad, we misinterpreted the state constitution.” That turn of events was highly unlikely, however, as the count was almost certain to remain 4-3 until at least one justice was replaced. And there is simply no way of knowing whether the next appointment would tip the scale in the opposite direction. The only viable option for opponents to gay marriage, now up against the supreme law of the state, was to rewrite the supreme law of the state. And by voter initiative, they introduce Proposition 8, to do just that.
By amending the constitution, the state’s ultimate authority has been rewritten. The document that governors, lawmakers, and the state courts promise to enforce and obey now gives them a clear statement of law – marriage can exist only between a man and a woman. State officials and citizens are making a number of technical objections as to how the amendment was drafted and proposed, but for our purposes, we’ll assume the California Supreme Court will find the amendment to have been properly drafted and proposed. The only state-level solution for Proposition 8 opponents will then be to, once again, rewrite the the California Constitution. Fortunately for those who favor a more inclusive definition of marriage, that is not terribly difficult to do.
Some Proposition 8 opponents are holding out hoping that the the Federal Constitution and Supreme Court might yet come to the rescue. This help, however, is almost certain not to come. Recall from our previous discussion of the Federal and State Constitutions that state laws and constitutions can be invalidated if they interfere with or run contrary to the Federal Constitution or the federal laws that flow from it. Opponents of Proposition 8 must therefore find a right or rule of the Federal Constitution to which a ban on gay marriage is contrary. The most likely constitutional lifeline lies in the Equal Protection Clause of the Federal Constitution. It was the Equal Protection Clause of the California Constitution, after all, that led four of the seven California Supreme Court justices to reject the law created by Proposition 22. Unfortunately for Proposition 8 opponents, the Federal Supreme Court doesn’t agree with the California Supreme Court on how the federal Equal Protection Clause should be interpreted.
The Federal Supreme Court interprets the federal Equal Protection Clause to prevent the federal and state governments from treating citizens differently based on nominal or insignificant differences. To help its analysis it delineates a number of “suspect classifications” such as race, national origin, religion and alienage. Any law, constitutional article or amendment or policy that discriminates or is applied based upon these classifications will, with rare exception, be considered in violation of the Equal Protection Clause of the Federal Constitution. The Supreme Court is also somewhat skeptical of government classifications based on sex or legitimacy. Discrimination based upon homosexuality, on the other hand, has not been recognized as requiring heightened judicial scrutiny. Under this framework, any law that discriminates need only have a “rational basis” – a low bar that the Proposition 8 amendment is almost certain to meet.
A few recent Supreme Court cases have suggested that the court may be slowly warming to the idea of treating homosexuality as a suspect classification and many academics believe that laws based upon sexual orientation are the next logical class for receiving heightened scrutiny. President Bush’s appointments to the Supreme Court, however, reduced the likelihood of any such designation in the near future.
Proposition 8 opponents therefore find themselves painted into the same corner the Proposition 8 supporters found themselves in after the California Supreme Court overturned the Proposition 22 law as being in violation of the California Constitution. Assuming the amendment was technically proper, the supreme law of the state now clearly limits marriage to a legal union between a man and a woman. The California Supreme Court and Governor Schwarzenegger are not only powerless to resist the amendment, but are required to enforce it. The state legislature can only propose another amendment. The Federal Supreme Court will almost certainly not intervene. Supporters of gay marriage are therefore left with only one viable option – constitutional amendment.
8,899,059 votes were cast in the 2006 gubernatorial election. If you want to amend the constitution to reverse the gay marriage ban, you must therefore first ask yourself this simple question – do I have 711,923 friends? Because if you do, we can put it to a vote.