The California Supreme Court got it exactly right last May: gays and lesbians should have the same ability to express love and commitment through marriage as heterosexuals always have had. Gays and lesbians should be able to receive all of the legal benefits that marriage provides, and they should be able to experience all the same joys and disappointments of marriage that heterosexuals possess. I realize, of course, that there are some who vehemently oppose the idea of same-sex marriage. The solution is that they should not marry someone of the same sex; however, their personal preference is not a reason to deny others this right.
As the California Supreme Court observed in its May decision, it has long been recognized that the right to marry is a fundamental right and that discrimination against gays and lesbians is inherently suspect and therefore almost always unconstitutional. Canada and almost every western European nation now provide marriage equality.
Proposition 8, which passed in November, sought to overturn the California Supreme Court decision and end same-sex marriage in California. On March 5, the Supreme Court held oral arguments in a case challenging Proposition 8 as violating the California Constitution.
There are two major issues before the California Supreme Court. First, is Proposition 8 an “amendment” to the Constitution, in which case it is constitutional, or is it a “revision,” threfore making it unconstitutional? Second, assuming that Proposition 8 is valid, does it apply retroactively to invalidate same-sex marriages that occurred between June and November 2008?
To answer the first question, the California Constitution has long drawn a distinction between “amendments” and “revisions.” Amendments are valid if approved by a majority of the voters. Revisions, by contrast, require approval of two-thirds of the state legislature and then passage by the voters.
There are very few cases about the distinction between amendment and revision. The cases indicate that a fundamental change to the California Constitution is a revision, but one that does not alter the purposes of the Constitution is an amendment. The California Supreme Court held that it was a valid amendment for an initiative to reinstate the death penalty after it had been invalidated by the courts. But the California Supreme Court found that it was a revision when voters passed an initiative preventing California courts from providing greater rights for criminal defendants than they possess under the United States Constitution. Also, an initiative preventing open housing laws, which sought to eliminate racial discrimination in housing, was struck down.
Having read the cases, I am convinced that Proposition 8 is a revision and invalid. Simply put, taking a fundamental right away from a historically discriminated group should require the greater protections offered by a revision. The California Constitution states that one of its primary purposes is to ensure equal protection to all of its citizens. Proposition 8 alters that basic premise by denying the right to marry solely based on sexual orientation.
The California Constitution, like all constitutions, exists in large part to protect the rights of minorities. A simple majority should not be able to deprive a minority of a fundamental right.
Second, if the Court rejects this argument and finds that Proposition 8 is valid, it should hold that it applies prospectively and does not affect marriages that occurred between June and November 2008. There is a long-standing principle that a change in the law applies only prospectively unless it clearly and unequivocally says that it was intended to apply retroactively. Proposition 8 does not say or even hint at this anywhere.
After the oral arguments on March 5, the consensus among observers is that the California Supreme Court is likely to uphold Proposition 8 as a valid amendment, but rules that it applies only prospectively and not to already existing marriages. The question then becomes: what next?
Opponents of Proposition 8 need to mobilize to put an initiative on the ballot to overturn it and to amend the California Constitution to provide marriage equality for gays and lesbians. There is every reason to believe that such an effort can succeed. The campaign for Proposition 8 was filled with inaccuracies and distortions. The opponents of Proposition 8 were not successful in the short time of the campaign in exposing this, but a new campaign would give them the opportunity to do so.
Also, the opponents of Proposition 8 did not run a good campaign. This can be changed. There also were aspects of voter turnout that were unique and favored supporters of Proposition 8. Most of all, social attitudes are changing every year, as a larger percentage now favor marriage equality. Younger voters of all ideologies and political affiliations strongly favor marriage equality.
I believe that within my lifetime (and I am 55), gays and lesbians will have the right to marry throughout the United States. Proposition 8 is a major setback, but it will not eliminate progress toward eliminating a key aspect of the historical discrimination against gays and lesbians.
Erwin Chemerinsky is the Dean and Distinguished Professor of Law at UC Irvine’s School of Law. He can be reached at firstname.lastname@example.org.