I watched the oral arguments before the California Supreme Court in challenge and defense of Proposition 8.
It seems to me that the challengers wholly missed the simplest and most direct argument available to them, although there is a small chance that the justices themselves see this argument. It goes as follows:
By its plain language, if we accept the Proposition 8 amendment as part of the state constitution, then we have a seemingly self-contradictory constitution. On the one hand, the constitution guarantees equality of liberty and privacy: these provisions prohibit (as the court earlier found) marriage laws which discriminate by the sexes of the spouses in a marriage. On the other hand, with Prop. 8, marriage laws are required to be discriminatory.
We should understand this as a self-contradiction rather than a revision for the obvious reason that nobody, on either side, claims that Prop. 8 is a revision. Thus Prop. 8 adds a conjunction (“and”) rather than a negation (“is modified to say”). “Equal and straight-only marriage”—a contradiction. Prop. 8 doesn’t say, in its plain language, “Equal, as we said earlier except, now, straight-only marriage.” The difference is critical.
It is for that reason, as Justice Chin noted, Proposition 8 very plausibly requires the court to order the state that all marriages are invalid and not recognized by the state. Of course, as Justice Chin also noted: it is a legitimate question (or perhaps more accurately a question of legitimacy) whether or not the court has such power.
In the alternative, per Justice Kennard: marriage laws stand fully intact but “it’s just a name.” In Kennard’s view, the court would order the state to treat civil unions exactly like marriages, in all regards except name. In that case, probably within months, couples of all types could still go to county offices to get hitched but the pretty certificates the state prints up would say something like “State Recognized Union” or (my preference) “Hitched Up in California.”
Either way, it would appear, Proposition 8 implies a wrenching, far-sweeping change to the constitution with immense impact on existing statutes and regulations. It throws up problems of interpretation for the court that, frankly, the court lacks the power to resolve. Is the court supposed to order the state to stop using the word “marriage” at all? Is it supposed to declare that in California courts, “marriage” and “civil unions” are synonyms? Is it supposed to declare all extant marriages null and void? And, we’re supposed to believe the court has those powers?
The huge problems of interpretation that Proposition 8 creates are critical for a very simple reason: Nothing in the amendment or on the voter guide arguments in favor of Proposition 8 acknowledges these problems of interpretation or gives any guidance to the court about resolving them. The electorate—the voters—were not clearly informed about the implications of what they were voting upon.
I’ll say that more clearly: the ballot initiative was misleading. Everyone for or against it, with strong feelings, believes they know what it means. They just don’t all agree. The points over which they disagree create impossible-to-solve problems for the court.
It is the duty of those who draft a proposed amendment and the voter guide arguments for it to not create such impossibilities of interpretation and to make sure that voters are well informed of the intent. In the case of Prop. 8, the intent is incoherent, and the information given to voters paints a misleadingly simple picture.
The court has two legitimate choices that I see:
One alternative is to overthrow Prop. 8 as having been grossly inappropriately represented on the ballot and in the voters’ guide. This would return us to the status of Nov. 3, 2008.
The other alternative is to let Prop. 8 stand but to order the state to treat it as wholly inoperative in the absence additional clarification by further amendment or statute. This would return us to the status of Nov. 3 except that the legislature could try to pass laws to implement Prop. 8. Any such laws would still have to pass muster as not violating equal protection of liberty and privacy.
Either alternative is livable to the No-on-8 folks, but the first alternative—outright overturning—is more sensible. After all, if Prop. 8 is understood to create a new legislative power, then where is the talk about that in the language of the amendment or the voters’ guide?
Perhaps the court should flip a coin between those two choices, since the justices looked today like deers in headlights. Meanwhile, the counsel for the challengers could have done a better job, but at least Kennard and Chin were there to lay out a more substantial case. I hope their sharp dialectic from the bench reflects an awaiting and rational synthesis in chambers.
Thomas Lord is a Berkeley resident.