In my opinion, the court will have to determine that Prop 8 be considered a fundamental revision, as it conflicts with Article 1 Section 7 B.
The
Amador and
McFadden rulings would appear to argue otherwise.
Amador frames the issue thus:
We think it significant that prior to 1962 a constitutional revision could be accomplished only by the elaborate procedure of the convening of, and action by, a constitutional convention (art. XVIII, § 2). This fact suggests that the term "revision" in section XVIII originally was intended to refer to a substantial alteration of the entire Constitution, rather than to a less extensive change in one or more of its provisions. Many years ago, in Livermore v. Waite (1894) 102 Cal. 113, 118-119 [36 P. 424], we described the fundamental distinction between revision and amendment as follows: "The very term 'constitution' implies an instrument of a permanent and abiding nature, and the provisions contained therein for its revision indicate the will of the people that the underlying principles upon which it rests, as well as the substantial entirety of the instrument, shall be of a like permanent and abiding nature. On the other hand, the significance of the term 'amendment' implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed."
The nature of a constitutional revision, as it pertains to California, is that it is broad in scope and impact.
Amador does acknowledge that a revision may be of a qualitative nature, and is not solely dependent on the length of the initiative's language, but even in a qualitative sense, it suggests that to be revisory, an initiative's impact must touch several parts of the constitution to a significant degree:
Taken together our Livermore and McFadden decisions mandate that our analysis in determining whether a particular constitutional enactment is a revision or an amendment must be both quantitative and qualitative in nature. For example, an enactment which is so extensive in its provisions as to change directly the "substantial entirety" of the Constitution by the deletion or alteration of numerous existing provisions may well constitute a revision thereof. However, even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also. In illustration, the parties herein appear to agree that an enactment which purported to vest all judicial power in the Legislature would amount to a revision without regard either to the length or complexity of the measure or the number of existing articles or sections affected by such change.
This is a refinement of the standards articulated in
McFadden, which portrays a revision as explicitly touching at length several parts of the constitution:
Our review of the subjects covered by the measure and of its effect on the totality of our plan of government as now constituted does not purport to be exhaustive. It is amply sufficient, however, to demonstrate the wide and diverse range of subject matters proposed to be voted upon, and the revisional effect which it would necessarily have on our basic plan of government. The proposal is offered as a single amendment but it obviously is multifarious. It does not give the people an opportunity to express approval or disapproval severally as to each major change suggested; rather does it, apparently, have the purpose of aggregating for the measure the favorable votes from electors of many suasions who, wanting strongly enough any one or more propositions offered, might grasp at that which they want, tacitly accepting the remainder. Minorities favoring each proposition severally might, thus aggregated, adopt all. Such an appeal might well be proper in voting on a revised constitution, proposed under the safeguards provided for such a procedure, but it goes beyond the legitimate scope of a single amendatory article. There is in the measure itself no attempt to enumerate the various and many articles and sections of our present Constitution which would be affected, altered, replaced, or repealed. It purports only to add one new article but its framers found it necessary to include the omnibus provision (§ XII, subdiv. (7)) that "If any section, subsection, sentence, clause or phrase of the constitution is in conflict with any of the provisions of this article, such section, subsection, sentence, clause or phrase is to the extent of such conflict hereby repealed."
Proposition 8
appeared on the ballot as follows:
This initiative measure is submitted to the people in accordance with the
provisions of Article II, Section 8, of the California Constitution.
This initiative measure expressly amends the California Constitution by
adding a section thereto; therefore, new provisions proposed to be added are
printed in italic type to indicate that they are new.
SECTION 1. Title
This measure shall be known and may be cited as the “California Marriage
Protection Act.”
SECTION 2. Section 7.5 is added to Article I of the California Constitution,
to read:
SEC. 7.5. Only marriage between a man and a woman is valid or recognized in California.
The addition of a new section in and of itself would not rise to the level of revision under the
Amador and
McFadden standards. Proposition 8 does not explicitly alter any other section of the California Constitution.
The proposition is extremely brief--a mere 14 words of statutory language. Per the
Amador and
McFadden standards, the brevity of the initiative suggests the initiative is indeed the amendment it purports to be, rather than the revision some claim it to be.
The only avenue I can see to arguing the Proposition to be a revision as opposed to an amendment is that the impact of the amendment is sweeping and overbroad, and thus constitutes a revision rather than an amendment. However, the only article of the California Constitution either directly or indirectly affected by the statutory language is Article I. The remainder of the Constitution is not altered by so much as a comma by the inclusion of the language of Proposition 8--indeed, the word "marriage" appears four times in the Constitution (twice in Article I §25 and twice in Article 13A §2). Proposition 8 does not alter the property rights elucidated in Article I §25 nor the interpretations of the terms "purchased" and "change of ownership" elucidated in Article 13A §2. I do not see the contention of conflict with Article I §7(b) as being persuasive, because the statutory language of Proposition 8 does not apply unequally on the basis of race, ethnicity, nor even sexual orientation.
From a constitutional perspective, the statutory language of Proposition 8 appears to be concise in form and narrow in scope and impact, and thus fits the applicable standards for standing as an amendment rather than a revision to the California Constitution.
