The proposed initiative originally sought to limit the Constitutional right to marry to opposite-sex couples and, thus as originally drafted, it was intended to limit the right to marry to a man and a woman. The Right to Marry presently exists and in light of the recent ruling, the initiative's unintended consequence is an attempt to revise (as opposed to amend) the Constitution which is a fundamental right to all individuals and couples, without regard to their sexual orientation.
Whether an initiative constitutes an amendment or revision to the Constitution does not necessarily depend on the number of constitutional provisions it affects, but on the nature of the changes it makes. For a revision to be found, it must necessarily or inevitably appear from the face of the challenged provision that the measure will substantially alter the basic governmental framework set forth in our Constitution. Voters can propose amendments to the Constitution that will be placed on the ballot if the requisite number of signatures is obtained, but they may not propose constitutional revisions. Although the electorate may amend the Constitution by initiative, a revision of the Constitution may be accomplished only by a constitutional convention and popular ratification or by legislative submission of the measure to the electorate.
It has been suggested the revision provision is based on the principle that comprehensive changes to the Constitution require more formality, discussion and deliberation than is available through the initiative process. In the Marriage Cases, the California Supreme Court noted that the opposition asserted that the common law definition of marriage as the union of a man and a woman is constitutionally enshrined in the California Constitution by virtue of language in the 1849 and 1879 Constitutions that employed the terms "marriage," "wife," and "husband" in providing constitutional protection for separate-property rights, thereby precluding the Legislature or the people through the statutory initiative power from modifying the current statutes to permit same-sex couples to marry. However history belies the notion that any element that traditionally has been viewed as an integral or definitional feature of marriage constitutes an impermissible subject of judicial scrutiny.
In light of all of these circumstances, and the court concluded that retention of the traditional definition of marriage does not constitute a state interest sufficiently compelling, under the strict scrutiny equal protection standard, to justify withholding that status from same-sex couples. Accordingly, insofar as the provisions of sections 300 and 308.5 draw a distinction between opposite-sex couples and same-sex couples and exclude the latter from access to the designation of marriage, the court concluded these statutes are unconstitutional.
In other words, the statutory interpretations of marriage at Family Code §§ 300 and 308.5 were unconstitutional because the California Supreme Court interpreted marriage as including the right of same-gender couples to marry. These rights were probably always there but impermissibly prohibited by the unconstitutional acts of the legislature and the initiative process. A right so fundamentally rooted in society, a right which predates the Bill of Rights must, therefore, be a core element of the state constitution. Indeed, the Supreme Court noted that:
"It is apparent under the California Constitution that the right to marry -- like the right to establish a home and raise children -- has independent substantive content, and cannot properly be understood as simply the right to enter into such a relationship if (but only if) the Legislature chooses to establish and retain it."
At best, the state can create incentives to marry or, alternatively, to create conditions regulating the termination of a marriage. In view of the public's significant interest in marriage, California decisions have recognized that the Legislature has broad authority in seeking to protect and regulate this relationship by creating incentives to marry and adopting measures to protect the marital relationship. The Supreme Court wills most likely rule on the issue by August 8th and a California Constitutional analysis will likely be considered taking into consideration that a Constitutional "change" has occurred to a core element and at least four fundamental portions of the California Constitution by the Supreme Court. In light of the change, the right to marry is not properly viewed simply as a benefit or privilege that a government may establish as it sees fit, but rather that the right constitutes a basic civil or human right of all people. Taking into account that there are substantial changes in both the quantitative and qualitative effects of the initiative on our constitutional scheme as it now stands, the court could find that substantial changes in either respect could amount to a revision. Consequently, the petitioners should be entitled to know by August 8th if the Court will grant pre-election relief to remove the proposed "Limit on Marriage" Constitutional Amendment Initiative from the November, 2008 ballot.
And ending on a sad thought, if not a mighty thought, is this: If the Supreme Court permits Proposition 8 to be placed on the ballot, the Court in fact would have harmed the very institution it sought to protect. If Justice Ronald George and the California Supreme Court fail to remove Proposition 8 and we win in November, our marriage rights may, NO RATHER WILL, be put up to a simple initiative vote at every major election cycle. Whoever loses will always return. And with that threat, same gender couples will face the continual threat of invalidity, without any of the permanence the framers envisioned for the California Constitution.
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