Tuesday, May 26, 2009

The decision

Admittedly I haven't read every page carefully, and I don't completely grasp it all. But from what I have read and understood, it sounds like the majority's opinion turned on the question of whether or not Proposition 8 could be defined as a constitutional revision or a constitutional amendment.

[A] revision is a more substantial or extensive change, an amendment a less substantial or extensive one. (J. Werdegar)

Apparently, an amendment needs only the approval of the majority of the population, while a revision requires approval by two-thirds of each state house, followed by a majority vote.

The Supreme Court's majority opinion determined that a revision is defined as making "a fundamental change in the nature of the governmental plan or framework established by the Constitution." And, they reason, even though Prop. 8 has deprived individuals of some measure of their constitutional rights, there is apparently precedent in cases where constitutional amendments have deprived individuals of their constitutional rights, such as protection against cruel and unusual punishment (Frierson) and protection against unlawful searches and seizures (Lance W). Nevertheless, since these instances of the curtailing of constitutional rights did not result in "a fundamental change in the nature of the governmental plan or framework established by the Constitution," they cannot be categorized as "revision."

That, at least, is what I got out of this quote by George in the majority opinion:

As we have seen, a number of our past amendment/revision decisions have involved initiative measures that made very important substantive changes in fundamental state constitutional principles such as the right not to be subjected to cruel or unusual punishment (Frierson, supra, 25 Cal.3d 142) and the right to be protected against unlawful searches and seizures (Lance W., supra, 37 Cal.3d 873) — initiative measures that, like the current Proposition 8, cut back on the greater level of protection afforded by preceding court decisions and were challenged as constitutional revisions on the ground that the constitutional changes they effected deprived individuals of important state constitutional protections they previously enjoyed and left courts unable to fully protect such rights. Nonetheless, in each case this court did not undertake an evaluation of the relative importance of the constitutional right at issue or the degree to which the protection of that right had been diminished, but instead held that the measure did not amount to a qualitative revision because it did not make a fundamental change in the nature of the governmental plan or framework established by the Constitution.

My question is: Really? So, it would be okay for the majority of Californians to vote to cut back on the rights of Catholics or African Americans or women, as long as we deprive those groups of only some measure of their constitutional rights, and as long as we don't make fundamental changes in the "governmental plan or framework established by the Constitution"--whatever that means?

The minority opinion by Moreno indicates that George's majority opinion may contain more than a little b.s.:

The majority’s reliance upon the lead opinion in People v. Frierson (1979) 25 Cal.3d 142 (Frierson) is also misguided. That opinion stated the view of only three justices that the 1972 initiative measure that added a provision to the California Constitution stating that the death penalty did not constitute cruel or unusual punishment amended, rather than revised, the Constitution. Each of the remaining justices made it abundantly clear that they either declined to address this issue or disagreed with the lead opinion. Nevertheless, the majority treats the lead opinion as if it were a majority opinion, referring to it as “[o]ur opinion” (maj. opn., ante, at p. 69), and incorrectly referring to the lead opinion to describe what “the court concluded” (id. at p. 88).

In other words, Moreno says in the Frierson case, George is trying to pass off the "it's okay to curtail some of the constitutional rights of individuals and still call that 'amending' and not 'revising' the Constitution" rationale as if it had been the majority opinion of the Court. In truth, it was just the lead opinion representing only three justices. The other four justices did not support it.

Hmm. Makes me wonder what other "problems" exist in the majority report that I as a layperson don't have the legal education to discern?

The more I read of Moreno's dissenting minority opinion, the more I see the fog starting to clear. Moreno discusses the original purpose behind the idea of a constitutional amendment, that it was a way to prevent powerful minorities from getting their way, and was not meant to deprive persecuted minorities of their rights.

Although this initiative process was thereby instituted as a remedy for government corruption, and to free legislation from the influence of powerful special interests and the Legislature’s own self-serving inertia, there is no indication that this process was intended to prevent courts from performing their traditional constitutional function of protecting persecuted minorities from the majority will. There is a fundamental difference between preventing politically powerful minorities from unduly influencing legislative and judicial decisions on the one hand, and preventing courts from protecting the rights of disfavored minorities unable to obtain equal rights through the usual majoritarian processes on the other. There is no indication that the Progressives who framed the initiative process were insensible to that distinction, or that they sought to abolish the judiciary’s role as the guardian of minorities’ fundamental rights.

Moreno argues that there is no precedent for restricting the scope of the equal protection clause by mere constitutional amendment, or for placing the protection of equal rights into the hands of the electoral majority instead of the judiciary by mere amendment:

None of our prior cases considered whether an amendment to the Constitution could restrict the scope of the equal protection clause by adding language that requires discrimination based upon a suspect classification. Nor did these cases consider, as in the present situation, whether a transfer of the authority to protect the equal rights of a suspect class away from the judiciary to an electoral majority is the type of structural change that can be effected by a constitutional amendment. For the reasons discussed above, I believe this kind of change in the countermajoritarian nature of the equal protection clause is the type of fundamental alteration that can be done only through a constitutional revision.

Moreno's conclusion is that in order to make the changes advocated by Prop. 8, we would need a constitutional revision that says the equal protection clause should be modified to protect just some folks and not others (anyone for that idea?):

In my view, the aim of Proposition 8 and all similar initiative measures that seek to alter the California Constitution to deny a fundamental right to a group that has historically been subject to discrimination on the basis of a suspect classification, violates the essence of the equal protection clause of the California Constitution and fundamentally alters its scope and meaning. Such a change cannot be accomplished through the initiative process by a simple amendment to our Constitution enacted by a bare majority of the voters; it must be accomplished, if at all, by a constitutional revision to modify the equal protection clause to protect some, rather than all, similarly situated persons. I would therefore hold that Proposition 8 is not a lawful amendment of the California Constitution.