Aëtius correctly noted that the test focuses on both the quantitative and qualitative changes that the change imposes on the California Constitution. However, something important to note is that, "[s]ubstantial changes in either respect could amount to a revision." Raven, supra at 349. So, it is not necessary for there to be substantial changes in both the quantitative and qualitative aspects. This gives the Court considerable maneuvering room in crafting this opinion.
Now, the crucial issue for the California Supreme Court in the Raven case was that it tied the California Constitution to the United States Constitution, thereby stripping the California Supreme Court of its status as the final arbiter of the California Constitution. By tying the California Constitution to the prevailing interpretation of the United States Constitution, federal judges would suddenly gain the power to interpret that California Constitution by way of interpreting the US Constitution. Clearly that is a problem. Nothing in Proposition 8 has this type of effect, so the review will have to proceed along different grounds.
Quantitative Effects
Like the proposition at issue the Raven case, Proposition 8 does not delete any constitutional language, and only affects Article I. While Prop. 8 adds one section - Sec. 7.5 - the proposition in Raven added 3 sections and amended a fourth. The Court did not find the quantitative effect sufficient in Raven, so it is easy to see how they could rule the same with Prop. 8.
Qualitative Effects
The qualitative effects in Raven were what the Court really seized on. They found the vesting of the interpretive power of the California Constitution in the United States Supreme Court to be a "devastating" effect. As was stated in the earlier post, qualitative effects are analyzed to see if the proposition achieves far reaching, fundamental changes in our governmental plan. I agree with Aëtius in that this will boil down to the fundamental nature of the right at issue - marriage. Since the Court has already declared marriage to be a fundamental right (and did so quite recently), I believe they will be constrained to that. And, because I do not believe they will remove fundamental right status, I think it is conceivable for the Court to strike down Prop. 8 via the qualitative effects prong. I believe it could be successfully argued that a change resulting in the removal of a fundamental right from a class of citizens constitutes a fundamental change in our governmental plan.
Now, I have not read the other cases outlining the fine points of the analysis, but I see a possibility. If the issue of marriage as a fundamental right really gets reopened, then all bets are off. I just don't see that happening.
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ReplyDeleteI thought it worth mentioning that I heard a presentation on Prop. 8 specifically making the very point outlined above by Publius.
ReplyDeleteI think there is a strong constitutional/civil rights and precedential/stare decisis/inherent power of the court argument to be made... especially given the holding of the In Re Marriage Cases and the already annouced positions of the California Supreme Court.
But I also think that juidges make their decisions based upon their individual political philosophy and beliefs about the Constitution and justice. So the political demension is always a wild card. Don't count out the fact that the voters did explicitly approve Prop. 8 (although only by a narrow margin... and not in most coastal urban areas).
My prediction?
Since Marburry (a famous early case in which the U.S. Supreme Court claimed the power to interpret the law) courts have claimed the power to interpret the Constitution. I doubt the California Supreme Court will relinquish its power, even in the face of a popular iniatiative.