Earlier this year the state of California became the second state to legalize gay marriage.  In response, the people of California voted to alter their constitution under Ballot Proposition 8 to include the following sentence: “Only marriage between a man and a woman is valid or recognized in California.”  Because the California decision was rooted in the California constitution, the gay marriage in now illegal again in California.

Image Credit: Tim Schapker

Except not quite.

Unlike the United States Constitution, the California Constitution has a constitutional alteration process that distinguishes between “amendments” and “revisions”.  Under California law, only an “amendment” to the Constitution can be enacted by citizen initiative without the intervention of the legislature.  A “revision” requires a supermajority of the California state legislature in addition to a majority of voters. 

As a result of this distinction, gay rights advocates upset about the outcome of the vote on Proposition 8 have filed a lawsuit claiming that the “amendment” underlying Prop 8 was actually a deceptively worded revision, and therefore unconstitutionally passed.

So what is the difference between an amendment and a revision?  Unfortunately, the answer is not very clear.  The distinguishing feature seems to be the extent of the change the alteration actually produces.  In the past, an amendment that forced judges construe the legal rights of a criminal defendant very narrowly was deemed to be a revision. However, similar cases regarding the admissibility of illegally-obtained evidence were ruled to be an amendments.  The opinion of the courts in making their decisions are peppered with phrases like “far reaching changes in the nature of our basic governmental plan” and “substantially alter the substance and integrity of the state Constitution” and “alter the basic governmental framework” to justify calling a change a “revision” to the state Constitution.

Eugene Volokh and Dale Carpenter, two law professors who write at the Volokh Conspiracy, have both analyzed this issue.  Prof. Volokh has taken the position that the matter is an amendment, relying on cases like the illegally-obtained evidence case.  Carpenter has taken the opinion that any constitutional amendment that takes away a fundamental constitutional right, even a state right, should require a revision, since otherwise it leads to the result that statutory rights and constitutional rights are on par.

While Prof. Volokh’s argument seems to rely on valid precedent, there’s a genuine question as to whether the distinctions that the precedent tries to draw on this matter make any sense in this context.  The propositions discussed in the cases Volokh cites simply aligned california constitutional rights with federal constitutional rights. However, there’s no clear statement in the amendment that Proposition 8 did that.  Does Proposition 8 make marriage a non-fundamental right?  Does it remove sexual orientation as a protected class for constitutional rights purposes?  The failure of the writers of Proposition 8 to address anything except the result of the case makes the argument about which rights are being altered a big unknown.

As a result, the analysis these cases use is quite useless in trying to analyze the issues in Proposition 8.  Both sides are able to make a pretty plausible argument that the alteration is what they want it to be.  People on the Amendment side of the debate are right to point out that there’s really only a limited part of the state constitution affected. On the other hand, those on the revision side also rightfully point out that the rights removed are narrow but quite deep, since this sort of amendment essentially eviscerates the Equal Protection right provided by the state constitution.

Prof. Carpenter’s argument, on the other hand, seems to set out too much.  While Carpenter suggests that any amendment seeking to deprive a minority of a constitutional right should be a revision, one also has to ask why a state constitution’s amendment process should allow for such an amendment at all.  In other words, can any amendment process that allows for the creation of a right and then for that right to be taken away from some and not others even be legal? It doesn’t leave much of a brightline for the amendment process.

The net result of this confusion is that when the court makes its decision, it will ultimately be a political one.  This is simply because the law doesn’t provide any easy answers to the amendment/revision question, leaving the judges with no strong guide as to how to rule. As a consequence, they will have to rely on other legal principles to make their decision. As a result, there’s no way of telling how the court will end up ruling. A fact that is no doubt frustrating to the thousands of Californians whose marriages lay in the balance.