California AG reverses course, decides to challenge Prop 8

Made possible only because Prop 8 passed so narrowly, of course. Otherwise Moonbeam, who’s angling to replace Schwarzenegger in 2010, wouldn’t have dared.

In a brief filed with the high court, the state top’s lawyer argues for the first time that Proposition 8 should be invalidated, saying it is “inconsistent with the guarantees of individual liberty safeguarded” by the California Constitution. Brown had not taken a position on the measure until now.

“There are certain rights that are not to be subject to popular votes, otherwise they are not fundamental rights,” Brown said in an interview. “If every fundamental liberty can be stripped away by a majority vote, then it’s not a fundamental liberty.”…

The Supreme Court’s ruling in May held that the state constitution provides a right to marry that cannot be denied to same-sex couples. The brief filed by the attorney general on Friday argues that in order invalidate such a fundamental right, the court must determine that there is a compelling justification to do so, such as the protection of public health or safety.

His point ultimately is that Prop 8 shouldn’t be considered an “amendment” to the California constitution but a “revision.” What’s the difference? Hard to say from state case law, but essentially an amendment is a minor change to the document and a revision is a major one, based on both “quantitative and qualitative” factors. Follow the link and read Dale Carpenter’s post at Volokh for an excellent treatment. The more you add to or subtract from the constitution, the more likely it is that you’re making a revision; hence the “quantitative” component, which should bode well for a narrow alteration like Prop 8. On the other hand, imagine a ballot initiative to amend the state’s free exercise clause by making it illegal to, say, build synagogues in California. Per the “qualitative” component, is that a minor change or a major one? Arguably it’s the latter since religious freedom is a fundamental right — just like marriage is, which is precisely Brown’s point. The reason the distinction’s important is because while an “amendment” can pass by majority vote in a ballot initiative, a “revision” requires the approval of two-thirds of both houses of the state legislature, which, needless to say, Prop 8 will never get. So if the court agrees with Brown that it’s inane to make constitutional rights subject to simple majority whim, what we have here is a revision and the result would be tossed out.

Or would it? Evidently constitutional rights in California have been changed by simple amendment before, and like Patterico says, a right that was expanded just six months ago by court decision ain’t quite as “fundamental” as free exercise. My hunch is that Prop 8 supporters have more to fear from the U.S. Supreme Court, which has been trending towards expanding rights for gays for years and may seize this as its opportunity to make them a bona fide “suspect class” for equal protection purposes. Gabe Malor at Ace’s site is skeptical, but there’s no question the four liberals on the Court would vote that way; the X factor, as he always is, is Kennedy, and he’s already written two landmark gay rights opinions, one in 1996 and another in 2003. He’s about due for another. Exit question: Here’s a snippet from his opinion in Lawrence v. Texas. Notwithstanding the aside about “formal recognition” of relationships, per the boldfaced part, how does Prop 8 survive?

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.