Justice Moreno argues that Prop. 8 is a revision, not an amendment, and therefore must be implemented through a legislative proposal or a constitutional convention, and not by initiative. His rationale is that “a transfer of the authority to protect the equal rights of a suspect class away from the judiciary to an electoral majority” is a “kind of change in the countermajoritarian nature of the equal protection clause” that “is the type of fundamental alteration that can be done only through a constitutional revision.” And his arguments rests heavily on tradition: the courts’ “traditional constitutional function of protecting persecuted minorities from the majority will,” equal protection being “one of the core values upon which our state Constitution is founded,” “the guarantee of equal treatment hat has pervaded the California Constitution since 1849,” and the like.
But the trouble is that what constitutes equal rights, equal protection, and equal treatment — and on the other side, “persecut[ion]” of minorities rather than legitimately different treatment of different kinds of behavior — is not self-defining. Up until 2008, the California Constitution had not been read as treating the opposite-sex-only marriage rule as unconstitutional. Up until the 1990s, no state constitution in America had been. Certainly the drafters of the California Constitution to whose handiwork Justice Moreno appeals did not believe that opposite-sex-only marriage rules are unconstitutional. They had a different view of what constitutes a denial of equal rights than does Justice Moreno. Likewise, the voters who enacted Prop. 8 have a different view from Justice Moreno, and a view that is more in common with the truly traditional understanding of the substantive scope of equal protection.
Justice Moreno does acknowledge “that the right of gays and lesbians to marry in this state has only lately been recognized. But that belated recognition does not make the protection of those rights less important. Rather, that the right has only recently been acknowledged reflects an age-old prejudice that makes the safeguarding of that right by the judiciary all the more critical.” But again the judgment of what constitutes “prejudice” and what constitutes a legitimate basis for different treatment is precisely what the voters and the Justices disagree about.
Now in our constitutional tradition, the courts are indeed the final expositors of a constitution in the sense that they can strike state statutes down as unconstitutional. If the legislature disagrees with the courts, or if the voters enacting mere statutes disagree with the courts, then the courts’ interpretation of the constitution prevails. (The initiative process in California, and in some other states, lets voters enact proposals as statutes if they so wish, and with lower petition thresholds than those required for constitutional amendments.)
But when the voters who are trying to amend the Constitution take a different view of the proper scope of constitutional principles — even very important principles such as equality — and a different view of the line between “persecution” and proper recognition of what they see as real differences, then it seems to me that the view of the sovereign (the people), not of the sovereign’s servants (the Justices), should prevail. And though the Constitution prescribes that the will prevails only when it uses certain channels, and the channel of the initiative is usable only for “amendments” rather than “revisions,” I see no basis for importing the Justices’ personal views of “equality” and “persecution” into the amendment/revision line. (The majority expresses that well, I think.)
Talk of constitutional provisions’ being deliberately “countermajoritarian” strikes me as unhelpful here. First, the Constitution itself is both a countermajoritarian document and a majoritarian one; the initiative amendment provision is itself a designedly majoritarian feature. Second, the countermajoritarianism is itself a feature of certain constitutional provisions, which are just as subject to constitutional amendment, it seems to me, as are the majoritarian provisions.
And third, the question in such matters is always which majority should prevail — the majority of Justices on the state supreme court, or the majority of voters voting on the constitutional amendment. When the majority of the Justices are interpreting the state constitution in order to evaluate statutory provisions, they can appeal not just to their own majority view but to the authority of the Constitution. But when the majority of the Justices disagrees with the views of voters who are trying to amend that very same Constitution, such an appeal no longer works. All the Justices can say is that they are protecting the rights of the minority, but the whole point of the dispute is that there’s disagreement about what those rights should be.
That’s why I think the majority’s view was correct here. The revision/amendment line is indeed part of the state constitution, and it should be enforced. But there’s no justification for defining the line by reference to the judges’ own views of what equality really means, when the majority of the voters who are trying to amendment the constitution disagrees with majority of the judges.