Experts Not Surprised by Ruling to Uphold Prop 8
The Examiner
By Paul Elias
May 26, 2009

Gay marriage proponents had little chance of overturning Proposition 8 because California's notorious initiative process guarantees, in powerful legal language, voters' right to amend the state's constitution, legal analysts said Tuesday.

In the end, the California Supreme Court rejected arguments that the gay marriage ban, passed by the voters last fall, was such a fundamental change that it qualified as a constitutional revision - not just an amendment - and therefore needed to first go before lawmakers.

Chief Justice Ronald George, writing for the 6-1 majority, concluded that denying gay couples the word "marriage" "does not have a substantial or, indeed, even a minimal effect on the governmental plan or framework of California."

The justices' conclusion that Proposition 8 is not a constitutional revision doesn't speak to the issue's significance, George wrote. He noted that it was California's initiative process that led to women's voting rights, the reinstatement of the state's death penalty and legislative term limits.

"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," he wrote.

George, who also wrote the majority opinion last year that legalized gay marriage, said in Tuesday's ruling that the court's task was not to determine whether Proposition 8 "is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution."

The justices' decision was widely expected by legal experts.

"The court did what it had to do," said Douglas Kmiec, a Pepperdine University law professor who was a high-ranking Department of Justice lawyer under President Reagan.

University of California, Davis law professor Vikram Amar agreed that the justices had little legal leeway. Amar said of George: "At the oral argument, he certainly sent the message that his hands were tied."

Justice Carlos Moreno was the lone dissenter, arguing that Proposition 8 did qualify as a constitutional revision and saying that upholding it "weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority."

In the majority opinion, George noted that California's ability to amend its constitution is "considerably less arduous and restrictive" than changing the U.S. Constitution. It takes the signatures of 8 percent of the number of voters who voted in the most recent gubernatorial election to qualify a proposed amendment for the ballot.

And unlike other states, George wrote, California's constitution doesn't expressly prohibit voters from fiddling with such fundamental rights as free speech, jury trials and a free press.

George wrote that "it is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it." To change the initiative process, voters would have to pass an amendment limiting their own powers, he said.

University of California, Los Angeles law professor Brad Sears said the ruling "leaves open the possibility that voters can strip out fundamental rights."

Amar said he was disappointed that George didn't aggressively attack the relative ease in which California voters can change the state's constitution, which has more than 500 amendments compared to 27 in the U.S. Constitution.

Gay marriage supporters may fare better in federal court, where state officials would have to explain legally for the first time why some Californians can use the word "marriage" while others can't, analysts said.

Gay rights activists so far have avoided taking their case there for fear that a conservative majority on the U.S. Supreme Court would bar gay marriage across the country for good. But Kmiec and others said gay marriage supporters have a strong equal-protection argument that wasn't raised in the state court, which focused almost exclusively on the power of the electorate to amend the state's constitution.

"When you have something that unexplained in the law, it is begging for review," Kmiec said. "This is one of the strongest cases you can bring to federal court." Copyright 2008 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.