Update on California Prop. 8

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The ACLU, Lambda Legal, and the National Center for Lesbian Rights have filed a suit challenging the validity of recently passed California Proposition 8. They have asked for enforcement of the ban on same-sex marriages to be stayed pending the resolution of their challenge, which alleges that Proposition 8 is invalid because it is a constitutional revision rather than a constitutional amendment. (N.B.: They describe the difference between a revision and an amendment on p. 15 of their petition as follows: (1) a constitutional amendment “seeks to elaborate or improve upon existing constitutional principles,” while (2) a constitutional revision “seeks to change the ‘underlying principles’ upon which the Constitution is premised.”) As a constitutional revision, they argue, the ban on same-sex marriage cannot be enacted through the initiative process, as it was, but, under the constitution, must be considered and passed by supermajorities of both houses of the legislature prior to being submitted to the voters or to a constitutional convention. Because Proposition 8 did not follow the more deliberative process prescribed for constitutional revisions, they argue that it is invalid.

This argument, which apparently has been successful in the past, calls to mind an article by  Carlos E. González, Popular Sovereign Generated Versus Government Institution Generated Constitutional Norms: When Does a Constitutional Amendment not Amend the Constitution?, 80 Wash. U. L.Q. 127 (2002). In that article, Gonzalez, focusing on the federal constitution, argues that not all constitutional provisions are created equal:that there may actually be a hierarchy of constitutional norms based on the democratic legitimacy of their source. As a result, Gonzalez argues, certain constitutional provisions might be immune from repeal by a later amendment. I’m not sure that this article would be of particular help to those litigating this case, but, if any of them (or their friends or colleagues!) are reading this post, they might want to give a glance at Gonzalez’s article.

-Tony Infanti

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0 Responses to Update on California Prop. 8

  1. Am I correct that this is a California-specific argument about constitutional change? Or based on the theory you’ve articulated from Gonzalez’s article, it’s an argument that could be made for any constitution’s change?

  2. YF says:

    Yes, the amendment/revision distinction discussed here is California specific. Under the Federal constitution, for example, there are only amendments, which can be made a couple of different ways.

  3. Tony Infanti says:


    They’re making a California-specific argument in their petition. I just thought that this article might be interesting for them and might be something to (hopefully!) buttress their analysis.

    I came across Gonzalez’s article in the course of research for my most recent paper, which, in part, makes the argument that one can challenge state mini-DOMAs on the ground that (1) they, in fact, impose a tax on same-sex couples and (2) this tax violates the uniformity clause that is included in many state constitutions. In the paper, I had honed in on Arizona as an example because they have a great case under their uniformity clause that illustrates very well how such an argument could be constructed. The problem is that, after I had written the article, Arizona added their referendum on same-sex marriage to the ballot and that referendum passed. So, now we have two constitutional provisions that might conflict. Gonzalez’s article was helpful to me because his argument could be used to argue that the Arizona amendment banning same-sex marriage does not alter the application of the Arizona uniformity clause to any tax imposed by the mini-DOMA because the amendment is of a lower hierarchical order than the uniformity clause (which was included in the original Arizona constitution adopted at the time of statehood). I’m revising the paper now to reflect the events of Tuesday, but if you’re interested I can e-mail you a copy when I’m done doing the updating.

  4. Tony Infanti says:


    I shouldn’t have clicked “submit” so fast! The reason that I think Gonzalez’s article might be helpful here is in making their argument that this is a “revision” and not an “amendment.” Part of their argument about this rising to the level of a revision is that Prop. 8 squarely conflicts with the equal protection clause of the California constitution (which the California Supreme Court held in In re Marriage Cases requires strict scrutiny of sexual orientation-based classifications). It is this notion of conflict between an “amendment” and a bedrock constitutional principle that brought Gonzalez’s argument to mind.

  5. Thanks Tony. Here’s a post from Calvin Massey about the California law on the topic. As for your article, send it along when you are at a point you are comfortable doing so. Thanks!

  6. Pingback: Prop 8 « mirabile dictu

  7. draconismoi says:

    Thanks Tony – I was a clerk for NCLR during the marriage cases and have kept in touch with the current clerks. I’ll forward this article onto them (though they might have already found it, there are some amazingly brilliant minds at NCLR).

  8. Pingback: Feminist Law Professors » Blog Archive » California AG Brief in Prop. 8 Lawsuit