Same-sex marriage

In re Marriage Cases (2008), 43 Cal.4th 757

GEORGE, C.J.

In Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055, 17 Cal.Rptr.3d 225, 95 P.3d 459 (Lockyer ), this court concluded that public officials of the City and County of San Francisco acted unlawfully by issuing marriage licenses to same-sex couples in the absence of a judicial determination that the California statutes limiting marriage to a union between a man and a woman are unconstitutional. Our decision in Lockyer emphasized, however, that the substantive question of the constitutional validity of the California marriage statutes was not before this court in that proceeding, and that our decision was not intended to reflect any view on that issue. The present proceeding, involving the consolidated appeal of six cases that were litigated in the superior court and the Court of Appeal in the wake of this court’s decision in Lockyer, squarely presents the substantive constitutional question that was not addressed in Lockyer.

The legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes, but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage, but under which the union of an opposite-sex couple is officially designated a “ marriage” whereas the union of a same-sex couple is officially designated a “domestic partnership.” The question we must address is whether, under these circumstances, the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.

It also is important to understand at the outset that our task in this proceeding is not to decide whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership (or some other term), but instead only to determine whether the difference in the official names of the relationships violates the California Constitution. We are aware, of course, that very strongly held differences of opinion exist on the matter of policy, with those persons who support the inclusion of same-sex unions within the definition 0 of marriage maintaining that it is unfair to same-sex couples and potentially detrimental to the fiscal interests of the state and its economic institutions to reserve the designation of marriage solely for opposite-sex couples, and others asserting that it is vitally important to preserve the long-standing and traditional definition of marriage as a union between a man and a woman, even as the state extends comparable rights and responsibilities to committed same-sex couples. Whatever our views as individuals with regard to this question as a matter of policy, we recognize as judges and as a court our responsibility to limit our consideration of the question to a determination of the constitutional validity of the current legislative provisions.

As explained hereafter, the determination whether the current California statutory scheme relating to marriage and to registered domestic partnership is constitutionally valid implicates a number of distinct and significant issues under the California Constitution. First, we must determine the nature and scope of the “right to marry” — a right that past cases establish as one of the fundamental constitutional rights embodied in the California Constitution. Although, as an historical matter, civil marriage and the rights associated with it traditionally have been afforded only to opposite-sex couples, this court’s landmark decision 60 years ago in Perez v. Sharp (1948) — which found that California’s statutory provisions prohibiting interracial marriages were inconsistent with the fundamental constitutional right to marry, notwithstanding the circumstance that statutory prohibitions on interracial marriage had existed since the founding of the state — makes clear that history alone is not invariably an appropriate guide for determining the meaning and scope of this fundamental constitutional guarantee.

Upon review of the numerous California decisions that have examined the underlying bases and significance of the constitutional right to marry (and that illuminate why this right has been recognized as one of the basic, inalienable civil rights guaranteed to an individual by the California Constitution), we conclude that, under this state’s Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process. These core substantive rights include, most fundamentally, the opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage. As past cases establish, the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own — and, if the couple chooses, to raise children within that family — constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society.

Furthermore, in contrast to earlier times, our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation, and, more generally, that an individual’s sexual orientation — like a person’s race or gender — does not constitute a legitimate basis upon which to deny or withhold legal rights. We therefore conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.5

One of the core elements of the right to establish an officially recognized family that is embodied in the California constitutional right to marry is a couple’s right to have their family relationship accorded dignity and respect equal to that accorded other officially recognized families, and assigning a different designation for the family relationship of same-sex couples while reserving the historic designation of “marriage” exclusively for opposite-sex couples poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect. We therefore conclude that although the provisions of the current domestic partnership legislation afford same-sex couples most of the substantive elements embodied in the constitutional right to marry, the current California statutes nonetheless must be viewed as potentially impinging upon a same-sex couple’s constitutional right to marry under the California Constitution.

Furthermore, the circumstance that the current California statutes assign a different name for the official family relationship of same-sex couples as contrasted with the name for the official family relationship of opposite-sex couples raises constitutional concerns not only under the state constitutional right to marry, but also under the state constitutional equal protection clause. In analyzing the validity of this differential treatment under the latter clause, we first must determine which standard of review should be applied to the statutory classification here at issue. Although in most instances the deferential “rational basis” standard of review is applicable in determining whether different treatment accorded by a statutory provision violates the state equal protection clause, a more exacting and rigorous standard of review — “strict scrutiny” — is applied when the distinction drawn by a statute rests upon a so-called “suspect classification” or impinges upon a fundamental right. As we shall explain, although we do not agree with the claim advanced by the parties challenging the validity of the current statutory scheme6 that the applicable statutes properly should be viewed as an instance of discrimination on the basis of the suspect characteristic of sex or gender and should be subjected to strict scrutiny on that ground, we conclude that strict scrutiny nonetheless is applicable here because (1) the statutes in question properly must be understood as classifying or discriminating on the basis of sexual orientation, a characteristic that we conclude represents — like gender, race, and religion —a constitutionally suspect basis upon which to impose differential treatment, and (2) the differential treatment at issue impinges upon a same-sex couple’s fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple.

Under the strict scrutiny standard, unlike the rational basis standard, in order to demonstrate the constitutional validity of a challenged statutory classification the state must establish (1) that the state interest intended to be served by the differential treatment not only is a constitutionally legitimate interest, but is a compelling state interest, and (2) that the differential treatment not only is reasonably related to but is necessary to serve that compelling state interest. Applying this standard to the statutory classification here at issue, we conclude that the purpose underlying differential treatment of opposite-sex and same-sex couples embodied in California’s current marriage statutes — the interest in retaining the traditional and well-established definition of marriage — cannot properly be viewed as a compelling state interest for purposes of the equal protection clause, or as necessary to serve such an interest.

A number of factors lead us to this conclusion. First, the exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples; permitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties that currently are imposed on married opposite-sex couples. Second, retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples. Third, because of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples. Finally, retaining the designation of marriage exclusively for opposite-sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise — now emphatically rejected by this state — that gay individuals and same-sex couples are in some respects “second-class citizens” who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples. Under these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest. Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.

Plaintiffs contend that by limiting marriage to opposite-sex couples, California’s marriage statutes violate a number of provisions of the California Constitution.28 In particular, plaintiffs contend that the challenged statutes violate a same-sex couple’s fundamental “right to marry” as guaranteed by the privacy, free speech, and due process clauses of the California Constitution (Cal. Const., art. I, §§ 1, 2, 7), and additionally violate the equal protection clause of the California Constitution (Cal. Const., art. I, § 7).29 Because the question whether the challenged aspect of the marriage statutes violates or impinges upon the fundamental right to marry may be determinative in deciding the appropriate standard of review to be applied in evaluating plaintiffs’ equal protection challenge, we first address the question whether the challenged statutes independently infringe a fundamental constitutional right guaranteed by the California Constitution.

Although our state Constitution does not contain any explicit reference to a “right to marry,” past California cases establish beyond question that the right to marry is a fundamental right whose protection is guaranteed to all persons by the California Constitution. The United States Supreme Court initially discussed the constitutional right to marry as an aspect of the fundamental substantive “liberty” protected by the due process clause of the federal Constitution but thereafter in Griswold v. Connecticut (1965) the federal high court additionally identified the right to marry as a component of a “right of privacy” protected by the federal Constitution. With California’s adoption in 1972 of a constitutional amendment explicitly adding “ privacy” to the “inalienable rights” of all Californians protected by article I, section 1 of the California Constitution — an amendment whose history demonstrates that it was intended, among other purposes, to encompass the federal constitutional right of privacy, particularly as it developed beginning with Griswold v. Connecticut — the state constitutional right to marry, while presumably still embodied as a component of the liberty protected by the state due process clause,30 now also clearly falls within the reach of the constitutional protection afforded to an individual’s interest in personal autonomy by California’s explicit state constitutional privacy clause.

Plaintiffs challenge the Court of Appeal’s characterization of the constitutional right they seek to invoke as the right to same-sex marriage, and on this point we agree with plaintiffs’ position. In Perez v. Sharp — this court’s 1948 decision holding that the California statutory provisions prohibiting interracial marriage were unconstitutional — the court did not characterize the constitutional right that the plaintiffs in that case sought to obtain as “a right to interracial marriage” and did not dismiss the plaintiffs’ constitutional challenge on the ground that such marriages never had been permitted in California.32 Instead, the Perez decision focused on the substance of the constitutional right at issue — that is, the importance to an individual of the freedom “to join in marriage with the person of one’s choice ” — in determining whether the statute impinged upon the plaintiffs’ fundamental constitutional right.

Subsequent California decisions discussing the nature of marriage and the right to marry have recognized repeatedly the linkage between marriage, establishing a home, and raising children in identifying civil marriage as the means available to an individual to establish, with a loved one of his or her choice, an officially recognized family relationship. The right to marry represents the right of an individual to establish a legally recognized family with the person of one’s choice, and, as such, is of fundamental significance both to society and to the individual.35

Society is served by the institution of civil marriage in many ways. Society, of course, has an overriding interest in the welfare of children, and the role marriage plays in facilitating a stable family setting in which children may be raised by two loving parents unquestionably furthers the welfare of children and society. In addition, the role of the family in educating and socializing children serves society’s interest by perpetuating the social and political culture and providing continuing support for society over generations.36 It is these features that the California authorities have in mind in describing marriage as the “basic unit” or “building block” of society.

Although past California cases emphasize that marriage is an institution in which society as a whole has a vital interest, our decisions at the same time recognize that the legal right and opportunity to enter into such an officially recognized relationship also is of overriding importance to the individual and to the affected couple. As noted above, past California decisions have described marriage as “the most socially productive and individually fulfilling relationship that one can enjoy in the course of a lifetime. The ability of an individual to join in a committed, long-term, officially recognized family relationship with the person of his or her choice is often of crucial significance to the individual’s happiness and well-being. The legal commitment to long-term mutual emotional and economic support that is an integral part of an officially recognized marriage relationship provides an individual with the ability to invest in and rely upon a loving relationship with another adult in a way that may be crucial to the individual’s development as a person and achievement of his or her full potential.38

In recognizing, however, that the right to marry is a basic, constitutionally protected civil right — “a fundamental right of free men [and women]” —the governing California cases establish that this right embodies fundamental interests of an individual that are protected from abrogation or elimination by the state.41 Because our cases make clear that the right to marry is an integral component of an individual’s interest in personal autonomy protected by the privacy provision of article I, section 1, and of the liberty interest protected by the due process clause of article I, section 7, it is apparent under the California Constitution that the right to marry — like the right to establish a home and raise children — has independent substantive content, and cannot properly be understood as simply the right to enter into such a relationship if (but only if) the Legislature chooses to establish and retain it.

One very important aspect of the substantive protection afforded by the California constitutional right to marry is, of course, an individual’s right to be free from undue governmental intrusion into (or interference with) integral features of this relationship — that is, the right of marital or familial privacy. The substantive protection embodied in the constitutional right to marry, however, goes beyond what is sometimes characterized as simply a “negative” right insulating the couple’s relationship from overreaching governmental intrusion or interference, and includes a “positive” right to have the state take at least some affirmative action to acknowledge and support the family unit.

Although the constitutional right to marry clearly does not obligate the state to afford specific tax or other governmental benefits on the basis of a couple’s family relationship, the right to marry does obligate the state to take affirmative action to grant official, public recognition to the couple’s relationship as a family as well as to protect the core elements of the family relationship from at least some types of improper interference by others.

In light of the fundamental nature of the substantive rights embodied in the right to marry — and their central importance to an individual’s opportunity to live a happy, meaningful, and satisfying life as a full member of society — the California Constitution properly must be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation.44

It is true, of course, that as an historical matter in this state marriage always has been limited to a union between a man and a woman. Tradition alone, however, generally has not been viewed as a sufficient justification for perpetuating, without examination, the restriction or denial of a fundamental constitutional right. (Cf. Perez). As this court observed in People v. Belous, 71 Cal.2d 954, 967, 458 P.2d 194, “constitutional concepts are not static…. ‘In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights.’

In light of this recognition, sections 1 and 7 of article I of the California Constitution cannot properly be interpreted to withhold from gay individuals the same basic civil right of personal autonomy and liberty (including the right to establish, with the person of one’s choice, an officially recognized and sanctioned family) that the California Constitution affords to heterosexual individuals. The privacy and due process provisions of our state Constitution — in declaring that “[a]ll people … have [the] inalienable right of privacy” (art. I, § 1) and that no person may be deprived of “liberty” without due process of law (art. I, § 7) — do not purport to reserve to persons of a particular sexual orientation the substantive protection afforded by those provisions. In light of the evolution of our state’s understanding concerning the equal dignity and respect to which all persons are entitled without regard to their sexual orientation, it is not appropriate to interpret these provisions in a way that, as a practical matter, excludes gay individuals from the protective reach of such basic civil rights.

Our recognition that the constitutional right to marry applies to same-sex couples as well as to opposite-sex couples does not diminish any other person’s constitutional rights. Opposite-sex couples will continue to enjoy precisely the same constitutional rights they traditionally have possessed, unimpaired by our recognition that this basic civil right is applicable, as well, to gay individuals and same-sex couples.

The Proposition 22 Legal Defense Fund and the Campaign [organizations supporting the ban on same-sex marriage] agree that the constitutional right to marry is integrally related to the right of two persons to join together to establish an officially recognized family, but they contend that the only family that possibly can be encompassed by the constitutional right to marry is a family headed by a man and a woman. Pointing out that past cases often have linked marriage and procreation, these parties argue that because only a man and a woman can produce children biologically with one another, the constitutional right to marry necessarily is limited to opposite-sex couples.

This contention is fundamentally flawed for a number of reasons. To begin with, although the legal institution of civil marriage may well have originated in large part to promote a stable relationship for the procreation and raising of children, and although the right to marry and to procreate often are treated as closely related aspects of the privacy and liberty interests protected by the state and federal Constitutions, the constitutional right to marry never has been viewed as the sole preserve of individuals who are physically capable of having children.

A person who is physically incapable of bearing children still has the potential to become a parent and raise a child through adoption or through means of assisted reproduction, and the constitutional right to marry ensures the individual the opportunity to raise children in an officially recognized family with the person with whom the individual has chosen to share his or her life. Thus, although an important purpose underlying marriage may be to channel procreation into a stable family relationship, that purpose cannot be viewed as limiting the constitutional right to marry to couples who are capable of biologically producing a child together.

Furthermore, although promoting and facilitating a stable environment for the procreation and raising of children is unquestionably one of the vitally important purposes underlying the institution of marriage and the constitutional right to marry, past cases make clear that this right is not confined to, or restrictively defined by, that purpose alone. Uur past cases have recognized that the right to marry is the right to enter into a relationship that is “the center of the personal affections that ennoble and enrich human life.”

Accordingly, we conclude that the right to marry, as embodied in article I, sections 1 and 7 of the California Constitution, guarantees same-sex couples the same substantive constitutional rights as opposite-sex couples to choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage.52

For purposes of determining the applicable standard of judicial review under the California equal protection clause, we conclude that discrimination on the basis of sexual orientation cannot appropriately be viewed as a subset of, or subsumed within, discrimination on the basis of sex. Accordingly, we conclude that in the context of California’s equal protection clause, the differential treatment prescribed by the relevant statutes cannot properly be found to constitute discrimination on the basis of sex, and thus that the statutory classification embodied in the marriage statutes is not subject to strict scrutiny on that ground.

In our view, the statutory provisions restricting marriage to a man and a woman cannot be understood as having merely a disparate impact on gay persons, but instead properly must be viewed as directly classifying and prescribing distinct treatment on the basis of sexual orientation. By limiting marriage to opposite-sex couples, the marriage statutes, realistically viewed, operate clearly and directly to impose different treatment on gay individuals because of their sexual orientation. Having concluded that the California marriage statutes treat persons differently on the basis of sexual orientation, we must determine whether sexual orientation should be considered a “suspect classification” under the California equal protection clause, so that statutes drawing a distinction on this basis are subject to strict scrutiny. The issue is one of first impression in California,61 however, and for the reasons discussed below we conclude that sexual orientation should be viewed as a suspect classification for purposes of the California Constitution’s equal protection clause and that statutes that treat persons differently because of their sexual orientation should be subjected to strict scrutiny under this constitutional provision.

We disagree, however, with the Court of Appeal’s conclusion that it is appropriate to reject sexual orientation as a suspect classification, in applying the California Constitution’s equal protection clause, on the ground that there is a question as to whether this characteristic is or is not “immutable.” Although we noted in Sail’er Inn, 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529, that generally a person’s gender is viewed as an immutable trait , immutability is not invariably required in order for a characteristic to be considered a suspect classification for equal protection purposes. California cases establish that a person’s religion is a suspect classification for equal protection purposes and one’s religion, of course, is not immutable but is a matter over which an individual has control. Because a person’s sexual orientation is so integral an aspect of one’s identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment. In sum, we conclude that statutes imposing differential treatment on the basis of sexual orientation should be viewed as constitutionally suspect under the California Constitution’s equal protection clause.

In enforcing the California Constitution’s equal protection clause, however, past California cases have not applied an intermediate scrutiny standard of review to classifications involving any suspect (or quasi-suspect) characteristic. Unlike decisions applying the federal equal protection clause, California cases continue to review, under strict scrutiny rather than intermediate scrutiny, those statutes that impose differential treatment on the basis of sex or gender.

There is no persuasive basis for applying to statutes that classify persons on the basis of the suspect classification of sexual orientation a standard less rigorous than that applied to statutes that classify on the basis of the suspect classifications of gender, race, or religion. Because sexual orientation, like gender, race, or religion, is a characteristic that frequently has been the basis for biased and improperly stereotypical treatment and that generally bears no relation to an individual’s ability to perform or contribute to society, it is appropriate for courts to evaluate with great care and with considerable skepticism any statute that embodies such a classification. The strict scrutiny standard therefore is applicable to statutes that impose differential treatment on the basis of sexual orientation.

Under these circumstances, we conclude that the distinction drawn by the current California statutes between the designation of the family relationship available to opposite-sex couples and the designation available to same-sex couples impinges upon the fundamental interest of same-sex couples in having their official family relationship accorded dignity and respect equal to that conferred upon the family relationship of opposite-sex couples.

The judgment of the Court of Appeal is reversed, and the matter is remanded to that court for further action consistent with this opinion.

Concurring and Dissenting by BAXTER, J.

The majority opinion reflects considerable research, thought, and effort on a significant and sensitive case, and I actually agree with several of the majority’s conclusions. However, I cannot join the majority’s holding that the California Constitution gives same-sex couples a right to marry. In reaching this decision, I believe, the majority violates the separation of powers, and thereby commits profound error.

Only one other American state recognizes the right the majority announces today. So far, Congress, and virtually every court to consider the issue, has rejected it. Nothing in our Constitution, express or implicit, compels the majority’s startling conclusion that the age-old understanding of marriage — an understanding recently confirmed by an initiative law — is no longer valid. California statutes already recognize same-sex unions and grant them all the substantive legal rights this state can bestow. If there is to be a further sea change in the social and legal understanding of marriage itself, that evolution should occur by similar democratic means. The majority forecloses this ordinary democratic process, and, in doing so, oversteps its authority.

History confirms the importance of the judiciary’s constitutional role as a check against majoritarian abuse. Still, courts must use caution when exercising the potentially transformative authority to articulate 9 constitutional rights. Otherwise, judges with limited accountability risk infringing upon our society’s most basic shared premise — the People’s general right, directly or through their chosen legislators, to decide fundamental issues of public policy for themselves. Judicial restraint is particularly appropriate where, as here, the claimed constitutional entitlement is of recent conception and challenges the most fundamental assumption about a basic social institution. The majority has violated these principles. It simply does not have the right to erase, then recast, the age-old definition of marriage, as virtually all societies have understood it, in order to satisfy its own contemporary notions of equality and justice.

 

Cal. Constitution Art. I sec. 7.5

ARTICLE 1 DECLARATION OF RIGHTS

Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California.

Strauss v. Horton (2009), 46 Cal.4th 364

Strauss v. Horton (2009), 46 Cal.4th 364, 207 P.3d 48

GEORGE, C.J.

In the present case, we address the question whether Proposition 8, under the governing provisions of the California Constitution, constitutes a permissible change to the California Constitution, and—if it does—we are faced with the further question of the effect, if any, of Proposition 8 upon the estimated 18,000 marriages of same-sex couples that were performed before that initiative measure was adopted.

In addressing the issues now presented in the third chapter of this narrative, it is important at the outset to emphasize a number of significant points. First, as explained in the Marriage Cases, our task in the present proceeding is not to determine whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution. Regardless of our views as individuals on this question of policy, we recognize as judges and as a court our responsibility to confine our consideration to a determination of the constitutional validity and legal effect of the measure in question. It bears emphasis in this regard that our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values.

Although the initiative process may be used to propose and adopt amendments to the California Constitution, under its governing provisions that process may not be used to revise the state Constitution. Petitioners’ principal argument rests on the claim that Proposition 8 should be viewed as a constitutional revision rather than as a constitutional amendment, and that this change in the state Constitution therefore could not lawfully be adopted through the initiative process.

In analyzing the constitutional challenges presently before us, we first explain that the provision added to the California Constitution by Proposition 8, when considered in light of the majority opinion in the Marriage Cases, (which preceded the adoption of Proposition 8), properly must be understood as having a considerably narrower scope and more limited effect than suggested by petitioners in the cases before us. Contrary to petitioners’ assertion, Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right of privacy and due process that was analyzed in the majority opinion in the Marriage Cases—that is, the constitutional right of same-sex couples to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage”. Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion. Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.

Taking into consideration the actual limited effect of Proposition 8 upon the preexisting state constitutional right of privacy and due process and upon the guarantee of equal protection of the laws, and after comparing this initiative measure to the many other constitutional changes that have been reviewed and evaluated in numerous prior decisions of this court, we conclude Proposition 8 constitutes a constitutional amendment rather than a constitutional revision.

Petitioners contend, however, that even if Proposition 8 does not affect the governmental plan or framework established by the state Constitution, the measure nonetheless should be considered to be a revision because it conflicts with an assertedly fundamental constitutional principle that protects a minority group from having its constitutional rights diminished in any respect by majority vote. Petitioners, however, cannot point to any authority supporting their claim that under the California Constitution, a constitutional amendment—proposed and adopted by a majority of voters through the initiative process—cannot diminish in any respect the content of a state constitutional right as that right has been interpreted in a judicial decision. As we shall see, there have been many amendments to the California Constitution, adopted by the people through the initiative process in response to court decisions interpreting various provisions of the California Constitution, that have had just such an effect

Contrary to petitioners’ assertion, Proposition 8 does not “readjudicate” the issue that was litigated and resolved in the Marriage Cases. The initiative measure does not declare the state of the law as it existed under the California Constitution at the time of the Marriage Cases, but rather establishes a new substantive state constitutional rule that took effect upon the voters’ approval of Proposition 8. Because the California Constitution explicitly recognizes the right of the people to amend their state Constitution through the initiative process, the people, in exercising that authority, have not in any way impermissibly usurped a power allocated by the Constitution exclusively to the judiciary or some other entity or branch of government.

No authority supports the Attorney General’s claim that a constitutional amendment adopted through the constitutionally prescribed procedure is invalid simply because the amendment affects a prior judicial interpretation of a right that the Constitution denominates “inalienable.” The natural-law jurisprudence reflected in passages from the few early judicial opinions relied upon by the Attorney General has been discredited for many years, and, in any event, no decision suggests that when a constitution has been explicitly amended to modify a constitutional right (including a right identified in the Constitution as “inalienable”), the amendment may be found unconstitutional on the ground that it conflicts with some implicit or extraconstitutional limitation that is to be framed and enforced by the judiciary. Although the amending provisions of a constitution can expressly place some subjects or portions of the constitution off-limits to the amending process—as already noted, some state constitutions contain just such explicit limits—the California Constitution contains no such restraints. This court would radically depart from the well-established limits of the judicial function were it to engraft such a restriction onto the Constitution in the absence of an explicit constitutional provision limiting the amendment power.

Accordingly, we conclude that each of the state constitutional challenges to Proposition 8 advanced by petitioners and the Attorney General lacks merit. Having been approved by a majority of the voters at the November 4, 2008 election, the initiative measure lawfully amends the California Constitution to include the new provision as article I, section 7.5.

In a sense, petitioners’ and the Attorney General’s complaint is that it is just too easy to amend the California Constitution through the initiative process. But it is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it. If the process for amending the Constitution is to be restricted—perhaps in the manner it was explicitly limited in an earlier version of our state Constitution, or as limited in the present-day constitutions of some of our sister states—this is an effort that the people themselves may undertake through the process of amending their Constitution in order to impose further limitations upon their own power of initiative.

Finally, we consider whether Proposition 8 affects the validity of the marriages of same-sex couples that were performed prior to the adoption of Proposition 8. Applying well-established legal principles pertinent to the question whether a constitutional provision should be interpreted to apply prospectively or retroactively, we conclude that the new section cannot properly be interpreted to apply retroactively. Accordingly, the marriages of same-sex couples performed prior to the effective date of Proposition 8 remain valid and must continue to be recognized in this state.

In light of the interpretation of the language of Proposition 22 in the Marriage Cases, as well as the history of Proposition 8 itself, there is no question but that article I, section 7.5—the section added by Proposition 8 to the California Constitution—properly must be interpreted to apply both to marriages performed in California and to marriages performed in other jurisdictions.

Second, we consider the effect that Proposition 8 has on the “constitutional right to marry” as that right is discussed and analyzed in the majority opinion in the Marriage Cases. As we have seen, the opinion explained that this right constitutes one aspect of the right of privacy embodied in article I, section 1 of the California Constitution, as well as a component of the liberty protected by the due process clause of article I, section 7 of the California Constitution, and encompasses “the core set of basic substantive legal rights and attributes traditionally associated with marriage,” including, “most fundamentally, the opportunity of an individual to establish—with the person with whom the individual has chosen to share his or her life—an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.” Although the majority opinion in the Marriage Cases generally referred to this state constitutional right as the “constitutional right to marry,” at the same time that opinion explained that this constitutional right is distinct from the right to have one’s family relationship designated by the term “marriage.” Because in common speech the term “right to marry” is most often used and understood to refer to an individual’s right to enter into the official relationship designated “marriage,” and in order to minimize potential confusion in the future, instead of referring to this aspect of the state constitutional rights of privacy and due process as “the constitutional right to marry,” hereafter in this opinion we shall refer to this constitutional right by the more general descriptive terminology used in the majority opinion in the Marriage Cases—namely, the constitutional right to establish, with the person of one’s choice, an officially recognized and protected family relationship that enjoys all of the constitutionally based incidents of marriage (or, more briefly, the constitutional right to establish an officially recognized family relationship with the person of one’s choice).

Although the new constitutional section added by Proposition 8—article I, section 7.5—does not explicitly purport to amend either the privacy or due process provisions of the California Constitution, our past cases make clear that this newly adopted provision must be understood as carving out an exception to the preexisting scope of the privacy and due process clauses with respect to the particular subject matter encompassed by the new provision.

By its terms, the new provision refers only to “marriage” and does not address the right to establish an officially recognized family relationship, which may bear a name or designation other than “marriage.” Accordingly, although the wording of the new constitutional provision reasonably is understood as limiting use of the designation of “marriage ” under California law to opposite-sex couples, and thereby modifying the decision in the Marriage Cases, insofar as the majority opinion in that case holds that limiting the designation of “marriage” to the relationship entered into by opposite-sex couples constitutes an impermissible impingement upon the state constitutional rights of privacy and due process, the language of article I, section 7.5, on its face, does not purport to alter or affect the more general holding in the Marriage Cases that same-sex couples, as well as opposite-sex couples, enjoy the constitutional right, under the privacy and due process clauses of the California Constitution, to establish an officially recognized family relationship. Because, as a general matter, the repeal of constitutional provisions by implication is disfavored, Proposition 8 reasonably must be interpreted in a limited fashion as eliminating only the right of same-sex couples to equal access to the designation of marriage, and as not otherwise affecting the constitutional right of those couples to establish an officially recognized family relationship

Accordingly, although Proposition 8 eliminates the ability of same-sex couples to enter into an official relationship designated “marriage,” in all other respects those couples continue to possess, under the state constitutional privacy and due process clauses, “the core set of basic substantive legal rights and attributes traditionally associated with marriage,” including, “most fundamentally, the opportunity of an individual to establish—with the person with whom the individual has chosen to share his or her life—an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.” Like opposite-sex couples, same-sex couples enjoy this protection not as a matter of legislative grace, but of constitutional right.

Having analyzed and clarified the effect of Proposition 8 on the state constitutional rights of same-sex couples as determined in the Marriage Cases, we now address the multiple challenges under the California Constitution that have been advanced against Proposition 8 in the present proceeding. We begin with the principal contention raised by petitioners in each of the cases before us—namely, that the constitutional change embodied in Proposition 8 constitutes a constitutional revision rather than a constitutional amendment, and, as such, may not be adopted through the initiative process. [Chief Justice George proceeded to an excruciatingly thorough review of some thirty pages of the amendment/revision distinction in California constitutional law.]

As is revealed by the foregoing history of the amendment/revision distinction, and as our past cases demonstrate in applying that distinction, a change in the California Constitution properly is viewed as a constitutional revision only if it embodies a change of such far reaching scope that is fairly comparable to the example set forth in the Amador decision, namely, a change that “vests all judicial power in the Legislature.” It is only a qualitative change of that kind of far reaching scope that the framers of the 1849 and 1879 Constitutions plausibly intended to be proposed only by a new constitutional convention, and not through the ordinary amendment process. As we shall explain, the constitutional change embodied in Proposition 8—although without question of great importance to the affected individuals—by no means makes such a far reaching change in the California Constitution as to amount to a constitutional revision.

In advancing the claim that Proposition 8 should be characterized as a constitutional revision rather than as a constitutional amendment, petitioners also rely heavily upon the circumstance that the measure was proposed directly by the people through the initiative process rather than by the Legislature, implying that under the state Constitution a measure proposed by initiative is more “constitutionally suspect” than would be a comparable measure proposed by the Legislature. Past California cases, however, provide no support for the suggestion that the people’s right to propose amendments to the state Constitution through the initiative process is more limited than the Legislature’s ability to propose such amendments through the legislative process. To the contrary, the governing California case law uniformly emphasizes that “ ‘it is our solemn duty jealously to guard the sovereign people’s initiative power, “it being one of the most precious rights of our democratic process” ’ ” and that “ ‘ we are required to resolve any reasonable doubts in favor of the exercise of this precious right.’ ” The provisions of the California Constitution draw no distinction between the types of constitutional amendments that may be proposed through the initiative process as compared to those that may be proposed by the Legislature, and our past cases indicate that no such distinction exists.

It is not our role to pass judgment on the wisdom or relative merit of the current provisions of the California Constitution governing the means by which our state Constitution may be altered. In the absence of an explicit subject-matter limitation on the use of the initiative to propose and adopt constitutional amendments, and in light of the history of the relevant California constitutional provisions regarding the amendment/revision distinction and the numerous California precedents interpreting and applying that distinction, we conclude the existing provisions of the California Constitution governing amendment and revision cannot properly be interpreted in the manner advocated by petitioners. Accordingly, we hold that Proposition 8 constitutes a constitutional amendment rather than a constitutional revision.

In summary, we conclude that Proposition 8 constitutes a permissible constitutional amendment (rather than an impermissible constitutional revision), does not violate the separation of powers doctrine, and is not invalid under the “inalienable rights” theory proffered by the Attorney ***681 General. We further conclude that Proposition 8 does not apply retroactively and therefore that the marriages of same-sex couples performed prior to the effective date of Proposition 8 remain valid.

 

Perry v. Schwarzenegger, 704 F.Supp.2d 921 (Cal. 2010)

Perry v. Schwarzenegger, 704 F.Supp.2d 921 (N.D.Cal. 2010)

VAUGHN R. WALKER, Chief Judge

[Forty pages, approximately half the total length of Judge Walker’s opinion, consisted of detailed and enumerated “Findings of Fact”, which he subsequently referred to as “FF” and cited extensively in the parts of his opinion captioned “Conclusions of Law.” The FFs were detailed reviews of testimony offered on both sides. This unusual structure lent particular force to Judge Walker’s legal conclusions because of their thorough and meticulous character. In addition, all commentators agreed that the testimony proffered by Prop 8’s supporters was inexplicably weak and not credible. These two considerations gave the opinion a pyramidal quality: impossible to overturn because its supporting base was so broad. Ed.]

Plaintiffs challenge Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.

The Due Process Clause provides that no “State [shall] deprive any person of life, liberty, or property, without due process of law.” Due process protects individuals against arbitrary governmental intrusion into life, liberty or property. When legislation burdens the exercise of a right deemed to be fundamental, the government must show that the intrusion withstands strict scrutiny.

THE RIGHT TO MARRY PROTECTS AN INDIVIDUAL’S CHOICE OF MARITAL PARTNER REGARDLESS OF GENDE

The freedom to marry is recognized as a fundamental right protected by the Due Process Clause. The parties do not dispute that the right to marry is fundamental. The question presented here is whether plaintiffs seek to exercise the fundamental right to marry; or, because they are couples of the same sex, whether they seek recognition of a new right. Here, because the right to marry is fundamental, the court looks to the evidence presented at trial to determine: (1) the history, tradition and practice of marriage in the United States; and (2) whether plaintiffs seek to exercise their right to marry or seek to exercise some other right.

The state respects an individual’s choice to build a family with another and protects the relationship because it is so central a part of an individual’s life. Never has the state inquired into procreative capacity or intent before issuing a marriage license; indeed, a marriage license is more than a license to have procreative sexual intercourse. “It would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.” The [United States] Supreme Court recognizes that, wholly apart from procreation, choice and privacy play a pivotal role in the marital relationship.

Race restrictions on marital partners were once common in most states but are now seen as archaic, shameful or even bizarre. When the Supreme Court invalidated race restrictions in Loving, the definition of the right to marry did not change. Instead, the Court recognized that race restrictions, despite their historical prevalence, stood in stark contrast to the concepts of liberty and choice inherent in the right to marry.

The marital bargain in California (along with other states) traditionally required that a woman’s legal and economic identity be subsumed by her husband’s upon marriage under the doctrine of coverture; this once-unquestioned aspect of marriage now is regarded as antithetical to the notion of marriage as a union of equals. As states moved to recognize the equality of the sexes, they eliminated laws and practices like coverture that had made gender a proxy for a spouse’s role within a marriage. Marriage was thus transformed from a male-dominated institution into an institution recognizing men and women as equals. Id. Yet, individuals retained the right to marry; that right did not become different simply because the institution of marriage became compatible with gender equality.

The evidence at trial shows that marriage in the United States traditionally has not been open to same-sex couples. The evidence suggests many reasons for this tradition of exclusion, including gender roles mandated through coverture, social disapproval of same-sex relationships, and the reality that the vast majority of people are heterosexual and have had no reason to challenge the restriction. The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy-namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.

Because plaintiffs seek to exercise their fundamental right to marry, their claim is subject to strict scrutiny. That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.” Under strict scrutiny, the state bears the burden of producing evidence to show that Proposition 8 is narrowly tailored to a compelling government interest. Because the government defendants declined to advance such arguments, proponents seized the role of asserting the existence of a compelling California interest in Proposition 8.

As explained in detail in the equal protection analysis, Proposition 8 cannot withstand rational basis review. Still less can Proposition 8 survive the strict scrutiny required by plaintiffs’ due process claim. The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest. Proposition 8 cannot, therefore, withstand strict scrutiny.

EQUAL PROTECTION

The court defers to legislative (or in this case, popular) judgment if there is at least a debatable question whether the underlying basis for the classification is rational. Even under the most deferential standard of review, however, the court must “insist on knowing the relation between the classification adopted and the object to be attained.” The court may look to evidence to determine whether the basis for the underlying debate is rational.

STANDARD OF REVIEW

The Equal Protection Clause renders Proposition 8 unconstitutional under any standard of review. Accordingly, the court need not address the question whether laws classifying on the basis of sexual orientation should be subject to a heightened standard of review. Although Proposition 8 fails to possess even a rational basis, the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect.

The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation. All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation. Here, however, strict scrutiny is unnecessary. Proposition 8 fails to survive even rational basis review.

PROPOSITION 8 DOES NOT SURVIVE RATIONAL BASIS

Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause, as excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest.

PURPORTED INTEREST # 1: RESERVING MARRIAGE AS A UNION BETWEEN A MAN AND A WOMAN AND EXCLUDING ANY OTHER RELATIONSHIP

Proponents first argue that Proposition 8 is rational because it preserves: (1) “the traditional institution of marriage as the union of a man and a woman”; (2) “the traditional social and legal purposes, functions, and structure of marriage”; and (3) “the traditional meaning of marriage as it has always been defined in the English language.” These interests relate to maintaining the definition of marriage as the union of a man and a woman for its own sake.

Tradition alone, however, cannot form a rational basis for a law. The “ancient lineage” of a classification does not make it rational. Rather, the state must have an interest apart from the fact of the tradition itself. The tradition of restricting marriage to opposite-sex couples does not further any state interest. The evidence shows that the state advances nothing when it adheres to the tradition of excluding same-sex couples from marriage. Proponents’ asserted state interests in tradition are nothing more than tautologies and do not amount to rational bases for Proposition 8.

PURPORTED INTEREST # 2: PROCEEDING WITH CAUTION WHEN IMPLEMENTING SOCIAL CHANGES

Proponents next argue that Proposition 8 is related to state interests in: (1) “acting incrementally and with caution when considering a radical transformation to the fundamental nature of a bedrock social institution”; (2) “decreasing the probability of weakening the institution of marriage”; (3) “decreasing the probability of adverse consequences that could result from weakening the institution of marriage”; and (4) “decreasing the probability of the potential adverse consequences of same-sex marriage.”

Proponents presented no reliable evidence that allowing same-sex couples to marry will have any negative effects on society or on the institution of marriage. The process of allowing same-sex couples to marry is straightforward, and no evidence suggests that the state needs any significant lead time to integrate same-sex couples into marriage.

PURPORTED INTEREST # 3: PROMOTING OPPOSITE-SEX PARENTING OVER SAME-SEX PARENTING

Proponents’ largest group of purported state interests relates to opposite-sex parents. Proponents argue Proposition 8:(1) promotes “stability and responsibility in naturally procreative relationships”; (2) promotes “enduring and stable family structures for the responsible raising and care of children by their biological parents”; (3) increases “the probability that natural procreation will occur within stable, enduring, and supporting family structures”; (4) promotes “the natural and mutually beneficial bond between parents and their biological children”; (5) increases “the probability that each child will be raised by both of his or her biological parents”; (6) increases “the probability that each child will be raised by both a father and a mother”; and (7) increases “the probability that each child will have a legally recognized father and mother.”

The evidence supports two points which together show Proposition 8 does not advance any of the identified interests: (1) same-sex parents and opposite-sex parents are of equal quality, and (2) Proposition 8 does not make it more likely that opposite-sex couples will marry and raise offspring biologically related to both parents.

PURPORTED INTEREST # 4: PROTECTING THE FREEDOM OF THOSE WHO OPPOSE MARRIAGE FOR SAME-SEX COUPLES

Proponents next argue that Proposition 8 protects the First Amendment freedom of those who disagree with allowing marriage for couples of the same sex. Proponents argue that Proposition 8: (1) preserves “the prerogative and responsibility of parents to provide for the ethical and moral development and education of their own children”; and (2) accommodates “the First Amendment rights of individuals and institutions that oppose same-sex marriage on religious or moral grounds.”

These purported interests fail as a matter of law. Proposition 8 does not affect any First Amendment right or responsibility of parents to educate their children. Proposition 8 is not rationally related to an interest in protecting the rights of those opposed to same-sex couples because, as a matter of law, Proposition 8 does not affect the rights of those opposed to homosexuality or to marriage for couples of the same sex.

To the extent proponents argue that one of the rights of those morally opposed to same-sex unions is the right to prevent same-sex couples from marrying, as explained presently those individuals’ moral views are an insufficient basis upon which to enact a legislative classification.

PURPORTED INTEREST # 5: TREATING SAME-SEX COUPLES DIFFERENTLY FROM OPPOSITE-SEX COUPLES

Proponents argue that Proposition 8 advances a state interest in treating same-sex couples differently from opposite-sex couples by: (1) “using different names for different things”; (2) “maintaining the flexibility to separately address the needs of different types of relationships”; (3) “ensuring that California marriages are recognized in other jurisdictions”; and (4) “conforming California’s definition of marriage to federal law.”

Here, proponents assume a premise that the evidence thoroughly rebutted: rather than being different, same-sex and opposite-sex unions are, for all purposes relevant to California law, exactly the same. The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples. The evidence fatally undermines any purported state interest in treating couples differently; thus, these interests do not provide a rational basis supporting Proposition 8.

A PRIVATE MORAL VIEW THAT SAME-SEX COUPLES ARE INFERIOR TO OPPOSITE-SEX COUPLES IS NOT A PROPER BASIS FOR LEGISLATION

In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate.

CONCLUSION

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

 

Hollingsworth v. Perry, 133 S.Ct. 2652 (2013)

ROBERTS, C.J., delivered the opinion of the Court, in which SCALIA, GINSBURG, BREYER, and KAGAN, JJ., joined. KENNEDY, J., filed a dissenting opinion, in which THOMAS, ALITO, and SOTOMAYOR, JJ., joined.

Chief Justice ROBERTS delivered the opinion of the Court.

The public is currently engaged in an active political debate over whether same-sex couples should be allowed to marry. That question has also given rise to litigation. In this case, petitioners, who oppose same-sex marriage, ask us to decide whether the Equal Protection Clause “prohibits the State of California from defining marriage as the union of a man and a woman.” Respondents, same-sex couples who wish to marry, view the issue in somewhat different terms: For them, it is whether California — having previously recognized the right of same-sex couples to marry — may reverse that decision through a referendum

For there to be such a case or controversy [under Art. II of the federal Constitution], it is not enough that the party invoking the power of the court have a keen interest in the issue. That party must also have “standing,” which requires, among other things, that it have suffered a concrete and particularized injury. Because we find that petitioners do not have standing, we have no authority to decide this case on the merits, and neither did the Ninth Circuit.

Respondents, two same-sex couples who wish to marry, filed suit in federal court, challenging Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Federal Constitution. The complaint named as defendants California’s Governor, attorney general, and various other state and local officials responsible for enforcing California’s marriage laws. Those officials refused to defend the law, although they have continued to enforce it throughout this litigation. The District Court allowed petitioners — the official proponents of the initiative — to intervene to defend it. After a 12–day bench trial, the District Court declared Proposition 8 unconstitutional, permanently enjoining the California officials named as defendants from enforcing the law, and “directing the official defendants that all persons under their control or supervision” shall not enforce it.

Those officials elected not to appeal the District Court order. When petitioners did, the Ninth Circuit asked them to address “why this appeal should not be dismissed for lack of Article III standing.” After briefing and argument, the Ninth Circuit certified a question to the California Supreme Court:

“Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.”

The California Supreme Court agreed to decide the certified question, and answered in the affirmative. Without addressing whether the proponents have a particularized interest of their own in an initiative’s validity, the court concluded that “in a postelection challenge to a voter-approved initiative measure, the official proponents of the initiative are authorized under California law to appear and assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so.”

Relying on that answer, the Ninth Circuit concluded that petitioners had standing under federal law to defend the constitutionality of Proposition 8. California, it reasoned, “ ‘has standing to defend the constitutionality of its [laws],’ ” and States have the “prerogative, as independent sovereigns, to decide for themselves who may assert their interests.” After the District Court declared Proposition 8 unconstitutional and enjoined the state officials named as defendants from enforcing it, however, the inquiry under Article III changed. Respondents no longer had any injury to redress — they had won — and the state officials chose not to appeal.

The only individuals who sought to appeal that order were petitioners, who had intervened in the District Court. But the District Court had not ordered them to do or refrain from doing anything. To have standing, a litigant must seek relief for an injury that affects him in a “personal and individual way.” He must possess a “direct stake in the outcome” of the case. Here, however, petitioners had no “direct stake” in the outcome of their appeal. Their only interest in having the District Court order reversed was to vindicate the constitutional validity of a generally applicable California law.

We have repeatedly held that such a “generalized grievance,” no matter how sincere, is insufficient to confer standing. A litigant “raising only a generally available grievance about government — claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy.”

Petitioners argue that the California Constitution and its election laws give them a “ ‘unique,’ ‘special,’ and ‘distinct’ role in the initiative process—one ‘involving both authority and responsibilities that differ from other supporters of the measure.’ ” True enough — but only when it comes to the process of enacting the law. But once Proposition 8 was approved by the voters, the measure became “a duly enacted constitutional amendment or statute.” Petitioners have no role — special or otherwise — in the enforcement of Proposition 8. Article III standing “is not to be placed in the hands of ‘concerned bystanders,’ who will use it simply as a ‘vehicle for the vindication of value interests.’ ” No matter how deeply committed petitioners may be to upholding Proposition 8 or how “zealous [their] advocacy,” that is not a “particularized” interest sufficient to create a case or controversy under Article III.

Without a judicially cognizable interest of their own, petitioners attempt to invoke that of someone else. They assert that even if they have no cognizable interest in appealing the District Court’s judgment, the State of California does, and they may assert that interest on the State’s behalf. It is, however, a “fundamental restriction on our authority” that “in the ordinary course, a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties. For the reasons we have explained, petitioners have likewise not suffered an injury in fact, and therefore would ordinarily have no standing to assert the State’s interests.

We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.

 

David B. Cruz, “Equality’s Centrality: Proposition 8 and the California Constitution”

David B. Cruz, “Equality’s Centrality: Proposition 8 and the California Constitution,” 19 S. Cal. Rev. L. & Soc. Just. 45 (2010)

II. EQUALITY IN THE TEXT OF CALIFORNIA’S CONSTITUTION

The California Constitution is replete with provisions demonstrating the California constitutional order’s continued commitment to equality. The very first Article of California’s Constitution (following the Preamble) is the Declaration of Rights, and its very first guarantee provides: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”67

The right of privacy, one of the sources of the fundamental right to marry protected by the California Supreme Court in the Marriage Cases, is one of the inalienable rights declared at the beginning of the state’s constitution.68 It is a right enjoyed by Californians precisely because they are free and independent by nature. These clauses do not expressly state that these inalienable rights are enjoyed equally, but that is certainly implicit in their extension to “[a]ll people . . . by nature.”69 Without necessarily having to embrace the Attorney General’s precise doctrinal theory of “inalienable rights,”70 the fact that these rights are implied by human nature and deemed inalienable should have caused the Justices to pause before interpreting the California Constitution to allow a simple majoritarian amendment of the state constitution to strip such rights from groups defined by suspect classifications. [Prof Cruz was referring to the California Supreme Court’s decision in Strauss v. Horton (2009) upholding Prop 8.] If a naked majority can eliminate these rights, not just generally, but from a specific subset of the population, such a radical power to impose inequality is necessarily in tension with the notion that these rights, enjoyed by “all people,” are inalienable.

Moreover, the California Constitution does not require its interest in equality to be gleaned by inference, however strong, from its first provisions. Rather, the Declaration of Rights includes distinct equality clauses. Article IV, section 16 contains a pair of guarantees tracing back to the 1849 Constitution.71 Section 16(a) requires that “all laws of a general nature [shall] have uniform operation;”72 Section 16(b) dictates that “a local or special statute is invalid in any case if a general statute can be made applicable.”73 By ensuring uniformity, these provisions ensure equal treatment. In addition, and most generally, article I, section 7(a) provides in part that “a person may not be . . . denied equal protection of the laws.”74 This clause, linguistically parallel to the federal Equal Protection Clause,75 was added to the state constitution by voter approval of a constitutional revision in 1974.76

Even before this specific Equal Protection Clause was added, the state constitution included a Class Legislation Clause: Article I, section 7(b) of the California Constitution provides that “a citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens. Privileges or immunities granted by the Legislature may be altered or revoked.”77 There is more historically recent California case law that treats this clause, more commonly termed the Privileges or Immunities Clause, as merely part of an undifferentiated equal protection guarantee.78 This is a mistake. The state’s privileges or immunities clause is a related but distinct guarantee of equality,79 with longstanding roots in the state constitution.

The original Privileges or Immunities Clause of the California Constitution read: “No special privileges or immunities shall ever be granted which may not be altered, revoked, or repealed by the legislature, nor shall any citizen, or class of citizens, be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens.”80 It was promulgated with almost no debate in the 1878-1879 Constitutional Convention.81 In introducing the measure to the Convention, Mr. Van Dyke issued a report from the Committee on Preamble and Bill of Rights, stating: “We have inserted a new section declaring against special privileges and immunities. Several propositions were referred to us bearing upon this subject, and many of the Constitutions of other States contain similar provisions.”82 In arguing against a motion to strike a predecessor provision mandating that “all laws of a general nature shall have a uniform operation”83 — ultimately retained by the 1878-1879 Convention — Mr. McFarland defended its inclusion in broad equality terms by stating “it is a fundamental principle in our government that no law shall be passed which affects one person and not the balance of the community. That is the principle, as I understand it, that saves all our personal rights.”84

When a substantial revision to the state Constitution was proposed in 1970, this clause was redrafted into its present form, but the drafters did not intend to change its meaning.85 The Report of the Revision Commission explained: “Existing section 21 [of the California Constitution] prohibits the Legislature granting [sic] special privileges or immunities to one class of citizen which are not granted to all citizens. The Commission recommends retention of this provision and the addition of a clause granting equal protection and due process of law to all persons. Although the Fourteenth Amendment to the federal Constitution assures due process and equal protection, the Commission believes that our fundamental legal document should also provide these guarantees.”86

If California’s Privileges or Immunities Clause really was substantially identical to the Fourteenth Amendment’s Equal Protection Clause (or Due Process Clause),87 the Revision Commission presumably would not have thought that California’s Constitution did not “provide these guarantees.” Hence, the California Class Legislation Clause (or the Privileges or Immunities Clause) is best understood as yet one more separate guarantee of equality.

The California Constitution also contains equality guarantees with regard to political rights. Article I, section 22 provides, “[t]he right to vote or hold office may not be conditioned by a property qualification,”88 thus protecting the political rights of all, including poorer persons. Article 21, section 1(b) protects equality of representation: “The population of all congressional districts shall be reasonably equal.”89

Property rights are the subject of certain equality guarantees. Article I, section 20 contains an equality guarantee concerning property rights, crafted in the original 1849 Constitutional Convention, namely: “Noncitizens have the same property rights as citizens.”90 Additionally, article I, section 21 protects married women from having their property made subject to the control of their husbands.91

Other provisions in the California Constitution also provide specific equality guarantees in certain domains. For example, article I, section 8 proscribes various forms of occupational discrimination in government licensing or regulation: “A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin.”92 Similarly, but more broadly, article I, section 31 specifies that “the state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”93 Although this provision limits affirmative action, which many people believe necessary for genuine substantive equality, it does so in the service of its own conception of equality and nondiscrimination.

Repeatedly, and from its inception, the California Constitution has contained a multitude of provisions guaranteeing equality. The sheer numerosity of these provisions, even if insufficient to establish with the California Supreme Court that Prop 8’s equality override amounted to a “quantitative” revision of the state constitution, should have weighed heavily in the court’s consideration of whether Prop 8 effectuated a “qualitative” revision.94 These provisions all help establish that equality has always been, and indeed remains, not simply “a long-standing and fundamental constitutional principle,”95 but indeed a core, foundational principle of the California Constitution.

 

Vikram D. Amar, “California Constitutional Conundrums — State Constitutional Quirks Exposed by the Same-Sex Marriage Experience”

Vikram David Amar, “California Constitutional Conundrums — State Constitutional Quirks Exposed by the Same-Sex Marriage Experience,” 40 Rutgers L. J. 741 (2009

Constitutional law professors and commentators tend to devote their energy primarily, if not exclusively, to analyzing the Constitution of the United States. [But] there is much for all of us to learn by looking more carefully at the ways various state constitutions are operating and evolving. Just as there is a so-called laboratory value of federalism with respect to state and local statutory and administrative policies, [FN1] so too, features of and innovations in state constitutionalism should be looked at by other states—and at times the federal government [FN2]—for possible emulation.

Of course, designers of state constitutions might still have a few things to learn from their federal counterparts as well. Indeed, perhaps the most interesting lessons from a study of state constitutionalism emerge when we examine state and federal constitutional processes alongside, and in interaction with, each other. California’s recent (and ongoing) state constitutional experience with gay marriage and the state initiative process provide cases in point. There are numerous respects in which California’s state constitutional treatment of the same-sex marriage question may be informed by, and would profit from, a deeper awareness of the federal constitutional landscape.

To see some of these potential teachings, we need first describe the basic chronology of California’s experience in the last half-decade. Although identifying a starting point for the recent episodes seems arbitrary, for present purposes we can begin with San Francisco Mayor Gavin Newsom’s decision, in 2004, to direct that marriage licenses be issued in the county of San Francisco without regard to the sexual identity of the couples, in open contradiction of state statutes (one of which was passed as a statutory initiative by the voters in 2000) that defined marriage in the state as being between only a man and a woman. [FN3] Prompted by the California Attorney General, the Supreme Court of California responded by quickly enjoining Mayor Newsom’s policy (but not before a few thousand same-sex marriages had occurred), [FN4] and, after briefing and argument, issuing a lengthy opinion (unanimous in its result) holding that, under the state constitution, local executive officials had no authority to flout state laws, even state laws the officials felt were in violation of state or federal constitutional requirements. [FN5] In the same ruling, the court (though not unanimous as to its holding here) ruled that the same-sex marriages undertaken pursuant to Mayor Newsom’s actions had absolutely no legal effect and would have to be reentered into should same-sex marriage end up being recognized as protected under the state constitution. [FN6] The Supreme Court of California at that time did not take up the question whether the statutory ban on same-sex marriage did indeed contravene the state constitution, allowing this issue instead to be processed in the first instance by the lower courts.

A few years later, when that issue had trickled back up to California’s high court from the state court of appeal, [FN7] the justices ruled in 2008, this time by a sharply-divided 4-3 vote, that California statutes denying same-sex couples equal marriage rights did indeed violate liberty and equality provisions of the state constitution as it then existed. [FN8] This ruling, which authorized same-sex marriages beginning in June 2008, gave energy to a movement already underway by state voters to gather signatures to qualify for the ballot, and, in November 2008, ultimately enact Proposition 8, an initiative that built California’s ban on same-sex marriages into the state constitution. [FN9]

Same-sex marriage backers filed suit in state court again, this time arguing principally that Proposition 8 was procedurally flawed in that it constituted a “revision” of, rather than an “amendment” to, the state’s constitution. [FN10] Proposition 8, argued the claimants, did not go through the process required for a “revision,” namely, approval by two-thirds of each house of the state legislature. [FN11] In May 2009, almost exactly a year after its earlier ruling that same-sex marriage was protected under the state constitution as it then existed, the Supreme Court of California, by a 6-1 vote, upheld the validity of Proposition 8. [FN12]

Having lost, won and then lost in California’s high court, some same-sex marriage backers then filed suit in federal district court, alleging that Proposition 8 violates the Fourteenth Amendment’s federal guarantees of due process and equal protection. [FN13] With this abbreviated procedural background in mind, what might this ride on the roller coaster that is California’s constitution teach?

II. The Virtue (Need?) For More Robust Justiciability Doctrines in State Courts

[Another] potential lesson for California and other states to consider based on the same-sex marriage cases arises out of the lawsuit challenging Proposition 8 in the state supreme court. [FN21] As mentioned above, the California justices were confronted with the claim that Proposition 8—though approved by a majority of state voters—should be ineffective because it was a “revision”—rather than an “amendment”—that did not properly go through the revision process.

Putting aside the question, addressed below, of what a revision is [FN22] there is the question of who ought to decide what a revision is. In particular, it seems somewhat aggressive and democratically problematic for the court to assert for itself the power to determine and resolve whether its ruling from May 2008 was validly overridden by the voters. Of course, courts are regularly asked to interpret and implement their own past work-product, but there is a deeper—and arguably categorically distinct—institutional conflict of interest that arises when a court is being asked to assess not what its past cases mean, but whether its own past decisions get to survive in the face of the procedures for altering the text of the constitution, procedures designed to check and balance the court itself. Consider, for instance, the predicament the justices on the court would confront if they were asked to superintend another important check on the judiciary—the process by which the people are empowered to directly recall a justice sitting on the court.

Many of us who defended the May 2008 ruling in favor of protecting same-sex marriage under the state constitution against the charge of “judicial activism” did so on the ground that ambitious forward-looking interpretations of the state constitution by the justices are more defensible when there is a user-friendly and regularized process for fixing judicial “mistakes” by changing the constitutional document itself. But if the court gets to decide how streamlined that popular oversight process really is, then the argument in favor of permitting justices to expand law creatively in the first place is somewhat weaker. A corollary point: Where the original ruling was itself ambitious, going beyond clear text, history and structure, the court’s overseeing the process of textual change is correspondingly more troublesome.

In conversations with colleagues about the notion that the California court in Strauss v. Horton could or ought to have abstained or deferred in the Proposition 8 lawsuit, a number of potential objections have arisen. I discuss them here in turn.

A. If Not the Court, Then Who?

If the California court were to have stepped aside, who could make sure the line between amendments and revisions is respected by Proposition 8? Probably not the state legislature, since it too would seem to have an institutional conflict of interest. As noted earlier, “revisions” require involvement by the legislature, whereas amendments can bypass the legislature altogether and be placed on the ballot for approval simply by gathering enough signatures; the legislature might ordinarily be inclined, to insure its continued relevance and participation, to define the revision category broadly. [FN28]

That leaves us with the executive branch, the only one of the three whose own past action or institutional circumvention was not placed directly at issue in the Proposition 8 dispute. The executive part is also, by happy coincidence, the only government branch selected by and accountable to the same statewide electorate that got to vote on Proposition 8.

It may seem counterintuitive in today’s world that an institution or person other than a court can render a final decision upon a legal question; courts in many ways have been understood to be the civil rights heroes of the last fifty years. [FN29] But executive officials having the final legal say on important matters happens all the time. Unless and until a court is asked to clarify legal issues or compel the executive branch to perform a particular act, high-level executive officials often decide what law validly exists and should be enforced.

C. But [the] Political Question Doctrine is for Federal Courts, Not State Courts, Isn’t It?

My initial rejoinder to this objection is that it assumes the answer to the question we are examining—namely, whether state courts (in particular, California courts in the Proposition 8 case), should make more use of the political question idea. I should mention here that while most states have been quite reluctant to openly embrace political question limits on their courts, [FN35] in recent years a number of state courts have been overtly employing political question doctrine, at least in some settings, [FN36] and citing if not incorporating the famous Baker v. Carr [FN37] factors under which federal courts are supposed to operate.

E. What Real Harm Was Caused by the Court’s Resolving the Case on the Merits?

Quite predictably, the court rejected Plaintiffs’ challenge. [FN44] More problematically (but perhaps also predictably), the justices did so by entrenching, rather than rethinking, their earlier statements about what constitutes a “revision” as distinguished from an “amendment.” But this retreat to precedent, the most conservative (i.e., defensible by tradition) route, is precisely what one would have expected given the awkward institutional position in which the court placed itself by hearing the case. And the court did indeed retreat to the most straightforward, if not entirely thoughtful, reading of its past statements.

III. California’s Problematic Approach to Defining Revision and the Useful Federal Analogy

A. The (Greater) Problems with the Traditional Approach to Defining “Revision”

The Proposition 8 challengers’ theory of revision had its problems, but these problems pale in comparison to the Supreme Court of California’s traditional approach, reaffirmed and hardened in the Proposition 8 ruling. As noted above, over the years the court has said that a measure is a revision if, as a qualitative matter, it “substantially change[s] our preexisting government framework” [FN52] or makes “a fundamental change in our preexisting governmental plan.” [FN53] In more than one case, the court has given a standard hypothetical example of such a change: a measure that would “vest all judicial power in the Legislature.” [FN54] Such an alteration in the respective powers of the judicial and legislative branches, said the court, would profoundly change the “scheme” of government so as to be a revision. [FN55]

In Raven, the 1990 case, and the most recent ruling by the court holding a measure to be a “revision,” the court considered an initiative that directed the courts of California to construe a set of state constitutional rights of criminal defendants to afford no more protection than that provided for by the U.S. Constitution. [FN56] The set of rights included the rights to equal protection of the law, due process of law, assistance of counsel, a speedy trial, freedom from compelled self-incrimination, double jeopardy, cruel and unusual punishment, as well as the right to confront witnesses, and to be free from unreasonable search and seizure. [FN57]

In the Proposition 8 case, Strauss v. Horton, [FN63] the court reaffirmed this “structural” approach to defining revisions:

       [Plaintiffs] suggest that none of [our earlier] decisions explicitly held that only a measure that makes a fundamental change in the state’s governmental plan or framework can constitute a constitutional revision But in our view, a fair and full reading of this court’s past amendment/revision decisions [which we affirm today] demonstrates that those cases stand for the proposition that in deciding whether or not a constitutional change constitutes a qualitative revision, a court must determine whether the change effects a substantial change in the governmental plan or structure established by the Constitution. [FN64]

      What are we to make of the Supreme Court of California’s approach of defining “revisions” as focusing on and being limited to fundamental changes in the structure of government? For starters, the court’s suggestion that revisions describe significant changes to the “structure of government” must be taken with a grain of salt. Notice that the examples the court gives of things that must go through the revision process, such as a shift in power from state courts to the state legislature or from the state supreme court to the U.S. Supreme Court, tend to involve diminutions of judicial power in particular. In other words, there appears to be, predictably enough, a judicial institutional self-interest that has driven revision doctrine. Consider, by contrast, an initiative that tried to change the state constitution to alter or reduce legislative, rather than judicial, power—like a term-limits measure for legislators would, or a measure taking the job of drawing legislative district lines away from the legislators might. These changes might be thought to alter the “framework,” “plan” or “scheme” of government in profound ways, and yet to date initiatives that have accomplished these substantial changes in the framework of government have not been invalidated as revisions that should have gone through a more arduous process. Perhaps, in the real world, the revision monster will consume less in the way of direct democracy than is feared.

But there is a deeper problem in the doctrine than its court-centric focus. Indeed, to the extent that we must at some level take the court at its word and worry about structural changes being subject to revision challenge, the doctrine gets it exactly wrong—backwards in fact. Changes in the structure and extent of government powers are precisely those things that should not be considered subject to the revision procedure. It makes very little sense to require the legislature to approve, or convene a state constitutional convention to approve, measures that are themselves designed to check the legislature. Circumventing legislative inertia or self-dealing was precisely why direct democracy devices like the initiative came into being in the first place, [FN65] and (legislative) foxes simply ought not to be allowed to guard (reform) henhouses. [FN66]

B. Valuable Lessons From the Federal Constitutional Amendment Process

Here again, the federal model is instructive, and California would be wise to examine it. When the framers of the Federal Constitution took up the issue of subsequent constitutional change, the whole idea of building an amendment process into the Constitution derived from a concern that the people would need to reclaim some of the power they had delegated to their everyday government agents—some of whom might overly enjoy and abuse their power—in an orderly way. Concern about what modern economists label “agency costs” was one of the most dominant themes running through political discussion in the 1780s. In The Federalist Number 63, James Madison captured the common sentiment: “The people can never willfully betray their own interests: But they may possibly be betrayed by the representatives of the people . . . ” [FN67

Article V of the Federal Constitution, like the California Constitution, lays out more than one procedural route for accomplishing constitutional change. But unlike the California revision/amendment distinction, [FN73] the Federal Article V seems sensitive to the agency problem rather than exacerbative of it.

The mischief created by California’s approach to defining revision is generating current problems as various organizations consider the possibility of a new California constitutional convention to redress the myriad of governance issues that are plaguing the Golden State. [FN74] As currently written, the California Constitution authorizes only the legislature (by a two-thirds vote in each house) “to call a convention to revise the Constitution,” at which the “delegates shall be elected from districts nearly equal in population . . . ” [FN75] But what if the voters want a convention but the legislature (or more likely, one party in one house of the legislature) votes against a convention for fear that the proposed changes will hurt its ideological agenda? Can the people amend the constitution to allow a convention by gathering signatures and placing a measure on the ballot, or at least authorize the voters to create a convention themselves? And could such a popular-initiated state constitutional convention make use of delegates who are selected by means other than regional elections? Or would such proposals to bring about conventions in these new ways themselves be considered “revisions” that would have to go through the (reluctant) state legislature to proceed? It could be argued, under the court’s current approach, that nothing implicates the fundamental structure of government more than the power to hold a new constitutional convention. These are (to my mind surreal) questions that the Supreme Court of California’s less-than-careful way of defining revisions has forced many virtuous citizen groups to confront today.

Not only is the Federal Constitution instructive for California here, the Federal Constitution may even foreclose state constitutional limits on the power of the people to directly trigger a state constitutional convention. In particular, the Guarantee Clause of Article IV not only prevents the federal government from interfering with valid forms of state government, it

       assures a particular flexibility in state government, which is the states’ “right” to choose and to experiment with various forms of government and “to claim the federal guarantee” for those choices and experiments: Subject only to the condition that these choices and experiments remain within the zone of popular sovereignty. It is by this assurance of the states’ right to chose [sic] and to “claim the federal guarantee” for their choices, that the Guarantee Clause stands as a considerable part of federalism. [FN76]

      If the essence of republican government is, as many scholars have argued, popular sovereignty, then a state legislative and judicial refusal to recognize an orderly, majoritarian, electoral call for a new constitutional convention on the ground that the call did not command the approval of a supermajority of elected state legislators required for “revisions” would not seem to square with a “guarantee” to each state of republicanism. [FN77]

IV. Just as the Process for Revision May be Too Onerous, the Process for Amendment May Be Too Easy—The Lessons from AG Brown’s (Unsuccessful) Argument in the Proposition 8 Case

The Attorney General’s fourth and final argument was much less anticipated and much more expansive in its implications for state constitutional law. Brown stated that “this litigation, perhaps for the first time, poses a fundamental question: Is the initiative-amendment power wholly unfettered by the California Constitution’s protection of the People’s fundamental right to life, liberty and privacy?” [FN82]

Brown explained that article 1, section 1 of the state constitution declared certain fundamental rights to be inalienable. In its decision in In re Marriage Cases, the Supreme Court of California declared that those inalienable rights included the liberty right of same-sex couples to marry, and the equality right of gays and lesbians, a suspect class, to receive the same rights and status provided by law to heterosexual couples. [FN83] Accordingly, Brown argued, those rights may not be validly abridged unless Proposition 8 can be justified under strict scrutiny—a rigorous standard of review requiring the State to demonstrate that the challenged law was necessary to the furtherance of a compelling state interest. [FN84] “If the initiative process were to encompass the unlimited power to abrogate fundamental rights,” Brown concluded, “article 1, section 1, would be stripped of all meaning.” [FN86]

The Attorney General’s argument here does not seem consistent with California precedent upholding other state constitutional amendments against challenge, but in all fairness, it was pretty clearly not intended to be. The Attorney General’s argument was not one within the “box” of state constitutional case law. Rather, it was an invitation to the court to step outside of the box entirely and ask some foundational questions about the purpose and meaning of a state constitution.

In the next few paragraphs, I accept that invitation. What is the purpose of a constitution in a democratic society? Generally speaking, two answers are provided. First, a constitution protects the general public from a rogue government that abuses its power by serving its own personal and institutional interests instead of those of the people it was elected to represent and to serve. That is, a constitution addresses the so called “agency” problem that arises whenever people are required for practical reasons to delegate power to an agent who might betray the principals. Second, a constitution protects minorities from unreasonable and oppressive acts imposed on them through government by the majority—that is, from the potential “tyranny of the majority.” Typically, the protection provided to inalienable rights serves one or both of these purposes.

Given the process that exists for changing the California Constitution, does this particular state constitution accomplish either of those goals? It is hard to see how the California Constitution, as currently constituted, effectively accomplishes either purpose. A constitution that delegates to a supermajority of the legislature the power to control whether the people may revise and reallocate governmental authority would not seem to be an effective tool to prevent over-reaching by the legislature itself. [FN87]

The second goal of avoiding the tyranny of the majority fares no better, and perhaps even worse. Article II, section 8 of the California Constitution permits 8% of the electorate who voted in the last gubernatorial election to place a constitutional amendment on the ballot. And article XVIII, section 4 makes it clear that only a bare majority of the voters is needed to amend the constitution. How much protection does a constitution provide to oppressed minorities against the majority, if the rights extended to minorities can be removed by a majority vote through a process that is not really guaranteed to be deliberative?

If these two arguments are combined, it appears that the California Constitution doesn’t do much of anything that deserves to be called constitutional.

A. A Potential Response: The Backstop of the Federal Constitution

There are at least two responses to this contention. First, it may be argued that the California Constitution doesn’t provide much in the way of protection to the people or to minorities, but so what? As long as the people of California are protected by the Federal Bill of Rights, we don’t have to worry very much about governmental or majoritarian oppression. That response places a great deal of faith in federal constitutional law. As an historical matter, however, that faith may not be justified. Traditionally, the U.S. Supreme Court’s Justices have been agonizingly slow to recognize some rights that some state courts had already been protecting for years. The Supreme Court of California figured out that anti-miscegenation laws violated the equal protection principle in Perez v. Sharp, [FN88] nineteen years before the U.S. Supreme Court agreed in Loving v. Virginia. [FN89]

Moreover, there are structural reasons why the U.S. Supreme Court may be quite reluctant to forcefully protect fundamental rights. If the ease with which the California Constitution may be amended casts doubt as to its utility as a constitution, then the amendment process set out in Article V is problematic for the exact opposite reason—it is so onerous as to be dysfunctional. Because U.S. Supreme Court decisions are so difficult to override by constitutional amendment, it is hardly surprising that the Court is often prudential and tentative in its rulings. In addition, federalism concerns and appropriate respect for state autonomy properly limit the U.S. Supreme Court’s willingness to pronounce nationally uniform standards for the protection of constitutional rights.

In sum, it would be a serious mistake to rely on the protection provided by federal constitutional rights as a justification for making state constitutions all but useless in securing liberty and equality to citizens. Instead, I suggest that there is a more dynamic and productive way to conceptualize state constitutional law that would benefit both the states and the federal constitutional system.

As I observed at the beginning of this Article, it is often said that one of the great advantages of a federalist system is that states can operate as laboratories of democracy—experimenting with common law and statutory frameworks in ways that provide useful information to other states and the federal government as well. I suggest that this value and utility is not limited to the common law and legislation. It applies with equal force to state constitutional law

Put another way, states can operate as laboratories of constitutional democracy. In doing so, they will not only serve to better inform the courts and polities of other states; they will also provide the federal courts with useful information as to how constitutional doctrine has worked in the smaller scale of state constitutional decision-making before any parallel nationwide constitutional doctrine is considered and adopted.

But for states to function as laboratories of constitutional democracy, their constitutions have to operate as constitutions. State constitutions that are hostage to legislative support and/or a bare majority vote in their alteration processes simply do not do that. An alteration process that is open to the people without legislative support, but that requires more than a bare majority of the electorate to accomplish—or at least requires a deliberative process to ensure that the majority is more than fleeting, and has considered all angles of a problem—is necessary for constitutional law to further constitutional purposes.

B. A Second Potential Response: Popular Sovereignty

A second response to the criticisms of the California Constitution I have described is that the primary purpose of a constitution in a democratic society is to protect popular sovereignty. I don’t dispute the popular sovereignty foundation of all American constitutionalism, but I am not sure that it requires the ease of amendment that exists in California.

Majority rule is not the same thing as majority whim. Even if a majority of the people can legitimately alter and abolish their system of government, the people should at least be required to understand and reflect deeply upon the changes they are adopting. And the unique value of constitutional law is that it both protects and constrains the operation of democracy. I do not suggest that there is necessarily one best way to maximize those sometimes-conflicting values. Instead, what I offer here is the idea that there is a lot of room for experimentation between the extraordinary burdens on amendment that exist in the United States Constitution, and the all-too-facile system of amendment that exists in California.

Indeed, one of the great experiments that states can conduct through their constitutional systems might involve this very question: the question of how the amendment process can best maximize the protection of democracy, alongside the fundamental rights that are intrinsic to the American experiment in government.

Women’s equality

Cal. Constitution Art. I sec. 8

CALIFORNIA CONSTITUTION

ARTICLE I.

Sec. 8. A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin.

 

Goesaert v. Cleary, 335 U.S. 464 (1948)

Mr. Justice FRANKFURTER delivered the opinion of the Court.

As part of the Michigan system for controlling the sale of liquor, bartenders are required to be licensed in all cities having a population of 50,000, or more, but no female may be so licensed unless she be ‘the wife or daughter of the male owner’ of a licensed liquor establishment. To ask whether or not the Equal Protection of the Laws Clause of the Fourteenth Amendment barred Michigan from making the classification the State has made between wives and daughters of owners of liquor places and wives and daughters of non-owners, is one of those rare instances where to state the question is in effect to answer it.

We are, to be sure, dealing with a historic calling. We meet the alewife, sprightly and ribald, in Shakespeare, but centuries before him she played a role in the social life of England. The Fourteenth Amendment did not tear history up by the roots, and the regulation of the liquor traffic is one of the oldest and most untrammeled of legislative powers. Michigan could, beyond question, forbid all women from working behind a bar. This is so despite the vast changes in the social and legal position of women. The fact that women may now have achieved the virtues that men have long claimed as their prerogatives and now indulge in vices that men have long practiced, does not preclude the States from drawing a sharp line between the sexes, certainly, in such matters as the regulation of the liquor traffic. The Constitution does not require legislatures to reflect sociological insight, or shifting social standards, any more than it requires them to keep abreast of the latest scientific standards.

While Michigan may deny to all women opportunities for bartending, Michigan cannot play favorites among women without rhyme or reasons. The Constitution in enjoining the equal protection of the laws upon States precludes irrational discrimination as between persons or groups of persons in the incidence of a law. But the Constitution does not require situations ‘which are different in fact or opinion to be treated in law as though they were the same.’ Since bartending by women may, in the allowable legislative judgment, give rise to moral and social problems against which it may devise preventive measures, the legislature need not go to the full length of prohibition if it believes that as to a defined group of females other factors are operating which either eliminate or reduce the moral and social problems otherwise calling for prohibition. Michigan evidently believes that the oversight assured through ownership of a bar by a barmaid’s husband or father minimizes hazards that may confront a barmaid without such protecting oversight. This Court is certainly not in a position to gainsay such belief by the Michigan legislature. If it is entertainable, as we think it is, Michigan has not violated its duty to afford equal protection of its laws. We cannot cross-examine either actually or argumentatively the mind of Michigan legislators nor question their motives. Since the line they have drawn is not without a basis in reason, we cannot give ear to the suggestion that the real impulse behind this legislation was an unchivalrous desire of male bartenders to try to monopolize the calling.

 

Sail’er Inn v. Kirby (1971), 5 Cal.3d 1 (1971)

Sail’er Inn v. Kirby (1971), 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529

PETERS, J.

Petitioners, holders of on-sale liquor licenses, seek a writ of mandate to prevent the Department of Alcoholic Beverage Control from revoking their licenses because they hired women bartenders, contrary to the prohibition contained in section 25656 of the Business and Professions Code.1 Section 25656 prohibits women from tending bar except when they are licensees, wives of licensees or are, singly or with their husbands, the sole shareholders of a corporation holding the license.2 Petitioners and amicus curiae contend that the code section violates article XX, section 18 of the California Constitution, . . . and the equal protection clauses of the United States and California Constitutions

I. SECTION 18 OF ARTICLE XX OF THE STATE CONSTITUTION

Article XX, section 18 of the California Constitution [now Art. I sec. 8] provides that “[a] person may not be disqualified because of sex, from entering or pursuing a lawful business, vocation, or profession.” In explicit and unqualified language, this section makes it clear that sex alone may not be used to bar a person from a vocation, profession or business. Provisions of the Constitution are “mandatory and prohibitory, unless by express words they are declared to be otherwise.” (Cal. Const., art I, § 22.) Section 18 constitutes a restraint upon the law-making power of the state, and legislative enactments contrary to its provisions are void. If section 18 is to be endowed with any force and meaning it must invalidate section 25656. It is clear that bartending is a lawful vocation, that women are as capable of mixing drinks as men, and that section 25656 nonetheless disqualifies the vast majority of women from entering the bartending occupation.

III. EQUAL PROTECTION

Finally, it is contended that section 25656 violates the equal protection clause of the Fourteenth Amendment to the United States Constitution and article I, sections 11 and 21, of the California, Constitution13 in that it prohibits women from tending bar unless they or their husbands hold the liquor license; but does not impose a comparable limitation on men

We recognize that the state has particularly broad powers with respect to the manufacture of and traffic in alcoholic beverages because of the dangers to the public health and safety inherent in their sale and use. Nonetheless, the power of the state to regulate alcoholic beverages is necessarily subject to the demands of the equal protection clause of the Fourteenth Amendment.

The instant case compels the application of the strict scrutiny standard of review, first, because the statute limits the fundamental right of one class of persons to pursue a lawful profession, and, second, because classifications based upon sex should be treated as suspect.

We have held that the state may not arbitrarily foreclose any person’s right to pursue an otherwise lawful occupation. The right to work and the concomitant opportunity to achieve economic security and stability are essential to the pursuit of life, liberty and happiness. As early as 1915, the United States Supreme Court declared that “the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of [the Fourteenth] Amendment to secure.” The California Legislature accords statutory recognition to the right to work by declaring the opportunity to seek, obtain and hold employment without discrimination a civil right. Limitations on this right may be sustained only after the most careful scrutiny.

We find that strict review is also required because of the characteristic upon which the classification in the statute is based. The United States Supreme Court has not designated classifications based on sex “suspect classifications” requiring close scrutiny and a compelling state justification for their constitutionality.15 Nonetheless, courts have begun to treat sex classifications as at least marginally suspect.

Sex, like race and lineage, is an immutable trait, a status into which the class members are locked by the accident of birth. What differentiates sex from nonsuspect statuses, such as intelligence or physical disability, and aligns it with the recognized suspect classifications is that the characteristic frequently bears no relation to ability to perform or contribute to society. The result is that the whole class is relegated to an inferior legal status without regard to the capabilities or characteristics of its individual members. Where the relation between characteristic and evil to be prevented is so tenuous, courts must look closely at classifications based on that characteristic lest outdated social stereotypes result in invidious laws or practices.

Another characteristic which underlies all suspect classifications is the stigma of inferiority and second class citizenship associated with them. Women, like Negroes, aliens, and the poor have historically labored under severe legal and social disabilities. Like black citizens, they were, for many years, denied the right to vote17 and, until recently, the right to serve on juries in many states.18 They are excluded from or discriminated against in employment and educational opportunities.19 Married women in particular have been treated as inferior persons in numerous laws relating to property and independent business ownership and the right to make contracts.20

Laws which disable women from full participation in the political, business and economic arenas are often characterized as “protective” and beneficial. Those same laws applied to racial or ethnic minorities would readily be recognized as invidious and impermissible. The pedestal upon which women have been placed has all too often, upon closer inspection, been revealed as a cage. We conclude that the sexual classifications are properly treated as suspect, particularly when those classifications are made with respect to a fundamental interest such as employment.

We now consider whether the state has established a compelling state interest. A number of state interests have been urged for the classification created by the statute. The first rationale rests upon the peculiar and wholly unacceptable generalization that women in bars, unrestrained by husbands or the risk of losing a liquor license, will commit improper acts. This rationale fails as a compelling state interest because it is wholly arbitrary and without support in logic or experience.

The second rationale-that women bartenders would be an “unwholesome influence” on the public-is even weaker than the first. The claim of unwholesomeness is contradicted by statutes which permit women to work as cocktail waitresses, serve beer and wine from behind a bar, or tend bar if they or their husbands hold a liquor license. The objection appears to be based upon notions of what is a “ladylike” or proper pursuit for a woman in our society rather than any ascertainable evil effects of permitting women to labor behind those “permanently affixed fixtures” known as bars. Such notions cannot justify discrimination against women in employment

We conclude that the classification created by section 25656 is invidious and wholly arbitrary. The state has not only failed to establish a compelling interest served by it, but it has failed to establish any interest at all. Section 25656 is unconstitutional under the equal protection clauses of the state and federal Constitutions.

[Note that Sail’er Inn was decided by the California Supreme Court five years before the United States Supreme Court handed down its decision in Craig v. Boren (429 U.S. 190 [1976]), which adopted much of the California court’s rationale but declined to impose a strict scrutiny test, instead articulating an intermediate scrutiny standard.]

 

People v. Belous (1969), 71 Cal.2d 954

People v. Belous (1969), 71 Cal.2d 954, 458 P.2d 194 (1969)

PETERS, J.

Dr. Leon Phillip Belous was convicted in January 1967, after a jury trial, of abortion, in violation of section 274 of the Penal Code, and conspiracy to commit an abortion, in violation of section 182 of the Penal Code, both felonies. Dr. Belous is a physician and surgeon, licensed since 1931 to practice medicine in the State of California, and specializing in obstetrics and gynecology. He has been on the attending staff of the gynecology department of Cedars of Lebanon Hospital in Los Angeles since 1931, is a fellow of the Los Angeles Gynecology and Obstetrical Society, the American College of Obstetrics and Gynecology, and the Abdominal Surgical Society, and the Geriatric Society, and a member of the American Board of Obstetrics and Gynecology. He is on the Board of Directors of the California Committee on Therapeutic Abortion, an organization which seeks to liberalize abortion laws. He is considered by his associates to be an eminent physician in his field.

Section 274 of the Penal Code, when the conduct herein involved occurred, read: “Every person who provides, supplies, or administers to any woman, or procures any woman to take any medicine, drug, or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, is punishable by imprisonment in the State prison not less than two nor more than five years.” We have concluded that the term “necessary to preserve” in section 274 of the Penal Code is not susceptible of a construction that does not violate legislative intent and that is sufficiently certain to satisfy due process requirements without improperly infringing on fundamental constitutional rights. [Discussion of issues of statutory construction omitted.]

Since abortion before quickening was not a crime at common law, we cannot rely on common law meanings or common law referents. Various possible meanings of “necessary to preserve … life” have been suggested. However, none of the proposed definitions will sustain the statute. Respondent asserts: “If medical science feels the abortion should be performed as it is necessary to preserve her life, then it may be performed; that is, unless it is performed the patient will die.” Our courts, however, have rejected an interpretation of “necessary to preserve” which requires certainty or immediacy of death. A definition requiring certainty of death would work an invalid abridgment of the woman’s constitutional rights. The rights involved in the instant case are the woman’s rights to life and to choose whether to bear children.5 The woman’s right to life is involved because childbirth involves risks of death.6

The fundamental right of the woman to choose whether to bear children follows from the Supreme Court’s and this court’s repeated acknowledgment of a “right of privacy” or “liberty” in matters related to marriage, family, and sex. The critical issue is not whether such rights exist, but whether the state has a compelling interest in the regulation of a subject which is within the police powers of the state and whether legislation impinging on constitutionally protected areas is narrowly drawn and not of “unlimited and indiscriminate sweep”.

It is possible that the definition suggested by respondent, requiring that death be certain, was that intended by the Legislature when the first abortion law was adopted in 1850 and that, in the light of the then existing medical and surgical science, the great and direct interference with a woman’s constitutional rights was warranted by considerations of the woman’s health. [But] it is now safer for a woman to have a hospital therapeutic abortion during the first trimester than to bear a child.7 Although abortions early in pregnancy, and properly performed present minimal danger to the woman, criminal8 abortions are “the most common single cause of maternal deaths in California.” In California, it is estimated that 35,000 to 100,000 such abortions occur each year. [For that reason,] amici for appellant, 178 deans of medical schools, including the deans of all California medical schools, chairmen of medical school departments, and professors of medical schools state: “These recorded facts bring one face- to-face with the hard, shocking — almost brutal — reality that our statute designed in 1850 to protect women from serious risks to life and health has in modern times become a scourge.”

Although we may assume that the law was valid when first enacted, the validity of the law in 1850 does not resolve the issue of whether the law is constitutionally valid today. Constitutional concepts are not static. Our United States Supreme Court said, regarding the equal protection clause of the Fourteenth Amendment: “We agree, of course, with Mr. Justice Holmes that the Due Process Clause of the Fourteenth Amendment ‘does not enact Mr. Herbert Spencer’s Social Statics.’ Likewise, the Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights. …”

In the light of modern medical surgical practice, the great and direct infringement of constitutional rights which would result from a definition requiring certainty of death may not be justified on the basis of considerations of the woman’s health where, as here, abortion is sought during the first trimester. The law has always recognized that the pregnant woman’s right to life takes precedence over any interest the state may have in the unborn. The California abortion statutes, as do the abortion laws of all 51 United States jurisdictions, make an exception in favor of the life of the prospective mother. Although there may be doubts as to whether the state’s interest may ever justify requiring a woman to risk death, it is clear that the state could not forbid a woman to procure an abortion where, to a medical certainty, the result of childbirth would be death. We are also satisfied that the state may not require that degree of risk involved in respondent’s definition, which would prohibit an abortion, where death from childbirth although not medically certain, would be substantially certain or more likely than not. Accordingly, the definition of the statute suggested by respondent must be rejected as an invalid infringement upon the woman’s constitutional rights.

We conclude that the validity of section 274 of the Penal Code before amendment cannot be sustained. Since section 274 is invalid, Dr. Belous’ conviction for violation of section 182 of the Penal Code, conspiracy to commit abortion, must likewise fall. The judgment is reversed with directions to the trial court to dismiss the indictment.

[Note that Belous was decided four years before Roe v., Wade (1973), which adopted a comparable privacy standard to void a state restriction on abortion.]

 

Harris v. McRae, 448 U.S. 297 (1980

Mr. Justice STEWART delivered the opinion of the Court.

This case presents statutory and constitutional questions concerning the public funding of abortions under Title XIX of the Social Security Act, commonly known as the “Medicaid” Act, and recent annual Appropriations Acts containing 1 the so-called “Hyde Amendment.” The statutory question is whether Title XIX requires a State that participates in the Medicaid program to fund the cost of medically necessary abortions for which federal reimbursement is unavailable under the Hyde Amendment. The constitutional question, which arises only if Title XIX imposes no such requirement, is whether the Hyde Amendment, by denying public funding for certain medically necessary abortions, contravenes the liberty or equal protection guarantees of the Due Process Clause of the Fifth Amendment, or either of the Religion Clauses of the First Amendment.

Since September 1976, Congress has prohibited — either by an amendment to the annual appropriations bill for the Department of Health, Education, and Welfare or by a joint resolution — the use of any federal funds to reimburse the cost of abortions under the Medicaid program except under certain specified circumstances. This funding restriction is commonly known as the “Hyde Amendment,” after its original congressional sponsor, Representative [Henry] Hyde.

Having determined that Title XIX does not obligate a participating State to pay for those medically necessary abortions for which Congress has withheld federal funding, we must consider the constitutional validity of the Hyde Amendment. The appellees assert that the funding restrictions of the Hyde Amendment violate several rights secured by the Constitution-(1) the right of a woman, implicit in the Due Process Clause of the Fifth Amendment, to decide whether to terminate a pregnancy, (2) the prohibition under the Establishment Clause of the First Amendment against any “law respecting an establishment of religion,” and (3) the right to freedom of religion protected by the Free Exercise Clause of the First Amendment. The appellees also contend that, quite apart from substantive constitutional rights, the Hyde Amendment violates the equal protection component of the Fifth Amendment.

Regardless of whether the freedom of a woman to choose to terminate her pregnancy for health reasons lies at the core or the periphery of the due process liberty recognized in Wade, it simply does not follow that a woman’s freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices. The reason why was explained in Maher [v. Roe, 432 U.S. 464 (1977)]: although government may not place obstacles in the path of a woman’s exercise of her freedom of choice, it need not remove those not of its own creation. Indigency falls in the latter category. The financial constraints that restrict an indigent woman’s ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency. Although Congress has opted to subsidize medically necessary services generally, but not certain medically necessary abortions, the fact remains that the Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all. We are thus not persuaded that the Hyde Amendment impinges on the constitutionally protected freedom of choice recognized in [Roe v.] Wade.

Although the liberty protected by the Due Process Clause affords protection against unwarranted government interference with freedom of choice in the context of certain personal decisions, it does not confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom.

[Discussion of challenges under the First Amendment’s religion clauses is omitted.]

We have already concluded that the Hyde Amendment violates no constitutionally protected substantive rights. We now conclude as well that it is not predicated on a constitutionally suspect classification [under equal protection analysis]. The principal impact of the Hyde Amendment falls on the indigent. But that fact does not itself render the funding restriction constitutionally invalid, for this Court has held repeatedly that poverty, standing alone is not a suspect classification.

We hold that a State that participates in the Medicaid program is not obligated under Title XIX to continue to fund those medically necessary abortions for which federal reimbursement is unavailable under the Hyde Amendment. We further hold that the funding restrictions of the Hyde Amendment violate neither the Fifth Amendment nor the Establishment Clause of the First Amendment. It is also our view that the appellees lack standing to raise a challenge to the Hyde Amendment under the Free Exercise Clause of the First Amendment. Accordingly, the judgment of the District Court is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.

 

Committee to Defend Reproductive Rights v. Myers (1981), 29 Cal.3d 252

TOBRINER, J.

Plaintiffs, representing indigent women throughout the state, challenge the constitutionality under the California Constitution of provisions in the 1978, 1979, and 1980 California Budget Acts that limit Medi-Cal funding for abortions. Although the acts differ in minor respects, all afford full funding of medical expenses incurred by indigent women who decide to bear a child, but, except in a few limited circumstances, deny funding to those indigent women who choose to have an abortion. Plaintiffs contend that this selective or discriminatory public funding scheme violates a number of distinct constitutional guarantees, in particular the women’s rights of privacy, due process, and equal protection of the laws.

At the outset, to dispel certain misconceptions that have appeared in this case, we must clarify the precise, narrow legal issue before this court. First, this case does not turn on the morality or immorality of abortion, and most decidedly does not concern the personal views of the individual justices as to the wisdom of the legislation itself or the ethical considerations involved in a woman’s individual decision whether or not to bear a child. Rather, we face the much narrower question of whether the state, having enacted a general program to provide medical services to the poor, may selectively withhold such benefits from otherwise qualified persons solely because such persons seek to exercise their constitutional right of procreative choice in a manner which the state does not favor and does not wish to support.

2. Our court bears an independent obligation to resolve plaintiffs’ claims under the California Constitution on the basis of the governing state constitutional principles.

In these actions, plaintiffs contend that the statutes violate a number of provisions of both the California and United States Constitutions. As already noted, in defending the challenged budget restrictions the Attorney General relies most heavily on the United States Supreme Court’s recent decision in Harris v. McRae (1980) 448 U.S. 297 in which a five-justice majority concluded that similar funding restrictions in the federal Medicaid program did not violate the provisions of the federal Constitution. McRae, of course, did not resolve or even address the question of the validity of such a statutory scheme under the California Constitution.

Under these circumstances, we think it important to reiterate the basic principles of federalism which illuminate our responsibilities in construing our state Constitution. In emphasizing, in People v. Brisendine (1975) 13 Cal.3d 528, “the incontrovertible conclusion that the California Constitution is, and always has been, a document of independent force,” our court explained that “it is a fiction too long accepted that provisions in state constitutions textually identical to the Bill of Rights were intended to mirror their federal counterpart. The lesson of history is otherwise: the Bill of Rights was based upon the corresponding provisions of the first state constitutions, rather than the reverse …. The federal Constitution was designed to guard the states as sovereignties against potential abuses of centralized government; state charters, however, were conceived as the first and at one time the only line of protection of the individual against the excesses of local officials.” Accordingly, we affirmed in Brisendine that state courts, in interpreting constitutional guarantees contained in state constitutions, are “independently responsible for safeguarding the rights of their citizens.”

3. Although the state has no constitutional obligation to provide medical care to the poor, a long line of California decisions establishes that once the state has decided to make such benefits available, it bears a heavy burden of justification in defending any provision which withholds such benefits from otherwise qualified individuals solely because they choose to exercise a constitutional right.

In analyzing the constitutionality of the challenged statutory scheme, we start from the premise, not challenged by the Attorney General, that under article I, section 1 of the California Constitution all women in this state – rich and poor alike – possess a fundamental constitutional right to choose whether or not to bear a child. Our court first recognized the existence of this constitutional right of procreative choice in People v. Belous (1969) 71 Cal.2d 954, four years before the United States Supreme Court in Roe v. Wade (1973) acknowledged the existence of a comparable constitutional right under the federal Constitution.

In 1972, moreover, the people of this state specifically added the right of “privacy” to the other inalienable rights of individuals enumerated in article I, section 1 of the state Constitution.6 The federal constitutional right of privacy, by contrast, enjoys no such explicit constitutional status

The Attorney General concedes that under article I, section 1 the state has no authority directly to prohibit rich or poor women from exercising their right of procreative choice as they see fit. He argues, however, that the state violates no constitutional precept when it does not directly prohibit the protected activity but simply declines to extend a public benefit — in this case publicly funded medical care — to those who choose to exercise their constitutional right in a manner the state does not approve and does not wish to subsidize.

This court faced a nearly identical legal contention in a different factual context over 30 years ago in Danskin v. San Diego Unified Sch. Dist. (1946) 28 Cal.2d 536. In Danskin, Justice Traynor — writing for the court — rejected the state’s argument in no uncertain terms: “The state is under no duty to make school buildings available for public meetings. If it elects to do so, however, it cannot arbitrarily prevent any members of the public from holding such meetings. Nor can it make the privilege of holding them dependent on conditions that would deprive any members of the public of their constitutional rights. A state is without power to impose an unconstitutional requirement as a condition for granting a privilege even though the privilege is use of state property.”

In more than three decades that have passed since the Danskin decision, both this court and the California Courts of Appeal have applied the legal principles underlying Danskin in a wide variety of factual settings, involving a host of different “public benefit” programs which conditioned the receipt of benefits on the waiver or forfeiture of a broad range of constitutional rights. As these numerous decisions teach, the Danskin principles apply whether the public benefit program at issue is access to a public forum,7 public employment,8 welfare benefits,9 public housing,10 unemployment benefits11 or the use of public property12 and whether the constitutional right singled out for discriminatory treatment is the right of free speech,13 or, as in this case, the right of privacy.14 In these varying contexts, California courts have repeatedly rejected the argument that because the state is not obligated to provide a general benefit, it may confer such a benefit on a selective basis which excludes certain recipients solely because they seek to exercise a constitutional right.15

In reaching our conclusion in [Bagley v. Washington Township Hospital Dist. (1966) 65 Cal.2d 499] we drew upon the cited prior holdings involving conditional benefit programs and on scholarly legal commentaries16 to construct a framework for judicial analysis of restrictions, like those here at issue, which exclude from government benefit programs potential recipients solely on the basis of their exercise of constitutional rights. Stressing that the “government bears a heavy burden of demonstrating the practical necessity” for such unequal treatment , our court in Bagley established a three-part standard that the state must satisfy to justify such a scheme.

First, we held that “the state must establish that the imposed conditions relate to the purpose of the legislation which confers the benefit or privilege.” Second, we declared that “not only must the conditions annexed to the enjoyment of a publicly conferred benefit reasonably tend to further the purpose sought by conferment of that benefit, but also the utility of imposing the conditions must manifestly outweigh any resulting impairment of constitutional rights.”) Third, and finally, we established that “in imposing conditions upon the enjoyment of publicly conferred benefits, as in the restriction of constitutional rights by more direct means, the state must establish the unavailability of less offensive alternatives and demonstrate that the conditions are drawn with narrow specificity, restricting the exercise of constitutional rights only to the extent necessary to maintain the integrity of the program which confers the benefits.” For at least the past decade the federal decisions in this area have not been a reliable barometer of the governing California constitutional principles.

The Danskin-Bagley line of cases is not concerned with a person’s liberty to reject an offered public benefit in favor of a private counterpart — the issue in the private school cases. Instead, Danskin and Bagley hold that when the state implements a general public benefit program, the California Constitution imposes definite limitations on the state’s ability to offer such a benefit in a fashion which discriminates against the exercise of constitutional rights. The statutory program at issue here does afford medical care on just such a selective or discriminatory basis.19

Accordingly, in evaluating the constitutionality of the challenged statutory provisions under the California Constitution, we employ the test established by the California unconstitutional condition cases.

4. Under the constitutional standard established in Bagley, the statutory provisions which discriminatorily deny generally available medical benefits to poor women solely because they choose to have an abortion are unconstitutional.

(a) The restrictions imposed on poor women’s right of procreative choice do not relate to the purposes of the Medi-Cal program.

(b) In light of the fundamental and intimate nature of the constitutional right of procreative choice and the severe impairment of that right that will in practice result from the statutory restrictions at issue, the utility of imposing such restrictions does not “manifestly outweigh [the] resulting impairment of constitutional rights.”

(c) The statutory scheme does not serve the state interest in providing medical care for indigents in a manner least offensive to the woman’s right of procreative choice.

5. Conclusion.

By virtue of the explicit protection afforded an individual’s inalienable right of privacy by article I, section 1 of the California Constitution, however, the decision whether to bear a child or to have an abortion is so private and so intimate that each woman in this state — rich or poor — is guaranteed the constitutional right to make that decision as an individual, uncoerced by governmental intrusion. Because a woman’s right to choose whether or not to bear a child is explicitly afforded this constitutional protection, in California the question of whether an individual woman should or should not terminate her pregnancy is not a matter that may be put to a vote of the Legislature.

If the state cannot directly prohibit a woman’s right to obtain an abortion, may the state by discriminatory financing indirectly nullify that constitutional right? Can the state tell an indigent person that the state will provide him with welfare benefits only upon the condition that he join a designated political party or subscribe to a particular newspaper that is favored by the government? Can the state tell a poor woman that it will pay for her needed medical care but only if she gives up her constitutional right to choose whether or not to have a child?

There is no greater power than the power of the purse. If the government can use it to nullify constitutional rights, by conditioning benefits only upon the sacrifice of such rights, the Bill of Rights could eventually become a yellowing scrap of paper. Once the state furnishes medical care to poor women in general, it cannot withdraw part of that care solely because a woman exercises her constitutional right to choose to have an abortion.31

Indeed, the statutory scheme before us is all the more invidious because its practical effect is to deny to poor women the right of choice guaranteed to the rich.32 An affluent woman who desires to terminate her pregnancy enjoys the full right to obtain a medical abortion, regardless of the opposition of any legislative majority. By contrast, when the state finances the costs of childbirth, but will not finance the termination of pregnancy, it realistically forces an indigent pregnant woman to choose childbirth even though she has the constitutional right to refuse to do so. Thus, we conclude that the restrictions in question are invalid under the California Constitution.

BIRD, C. J., Concurring.

If a citizen’s freedom to choose how to deal with procreation — contraception, abortion, or childbirth — is a fundamental constitutional right protected by the right to privacy, may the state constitutionally limit that choice for poor women when their choice is not one of the methods favored by the state? I agree with the lead opinion that the answer to this question is “no.” However, I would reach that conclusion by a somewhat different route.

I agree with the result reached in the lead opinion of this court. However, I would evaluate these restrictions under the strict judicial scrutiny test used to assess any governmental action which burdens the exercise of a fundamental right. In this case, the state must show a compelling interest to justify a curtailment of the right of privacy, a right expressly protected by the California Constitution in its Declaration of Rights. This compelling interest must be proven by the state whether it directly or indirectly interferes with the exercise of a fundamental right. The facts of this case illustrate how direct or indirect governmental infringement can, with equal force, stifle the assertion of a constitutionally protected right.3 Consequently, the funding restrictions by the Legislature must be judged by the same standard applicable to any direct burden placed by the state on the right of privacy.

 

Family restrictions and zoning

City of Santa Barbara v. Adamson (1980), 27 Cal.3d 123

City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123

27 Cal.3d 123, 164 Cal.Rptr. 539, 610 P.2d 436

NEWMAN, J.

“All people … have inalienable rights”, proclaims the California Constitution in the first sentence of article I. The second sentence reads: “Among these [inalienable rights] are enjoying … life and liberty, … possessing … property, and pursuing and obtaining … happiness, and privacy.” Appellants argue that Santa Barbara and the trial court have violated those rights because the court, on request of the city, ordered appellants to comply with a city ordinance which requires, in the zone where appellants and other individuals live together, that all occupants of houses like that in which they reside be members of a family.

Section 28.10.030 of the ordinance commands that no premises be used “in any manner other than is permitted in the zones in which such … premises are located.” Other sections describe the zones; those most directly involved here are the one-family, two-family, and multiple-family residence zones. The trial court concluded that appellants may not reside in such zones because they and individuals with whom they wish to live are not within the ordinance’s definition of “family”: “28.04.230 Family. 1. An individual, or two (2) or more persons related by blood, marriage or legal adoption living together as a single housekeeping unit in a dwelling unit …. 2. A group of not to exceed five (5) persons, excluding servants, living together as a single housekeeping unit in a dwelling unit.”

The record shows that appellants are three residents of a house in a single-family zone where the minimum lot-size is one acre. They and other individuals form a group of 12 adults who live in a 24-room, 10-bedroom, 6-bathroom house owned by appellant Adamson. The occupants are in their late 20’s or early 30’s and include a business woman, a graduate biochemistry student, a tractor-business operator, a real estate woman, a lawyer, and others. They are not related by blood, marriage, or adoption

Appellants say that they regard their group as “a family” and that they seek to share several values of conventionally composed families. A living arrangement like theirs concededly does achieve many of the personal and practical needs served by traditional family living. It could be termed an alternate family. It meets half of Santa Barbara’s definition because it is “a single housekeeping unit in a dwelling unit.” It fails to meet the part of the definition that requires residents, if they are more than five and are not servants, to be related by blood, marriage, or adoption.

Do the ordinance’s restrictions . . . respect the commands of the California Constitution concerning people’s rights to enjoy life and liberty, to possess property, and to pursue and obtain happiness and privacy? The court in White v. Davis⁴⁴ quoted these words from “a statement drafted by the proponents of the provision [that added ‘privacy’ to the California Constitution] and included in the state’s election brochure” : “’The right of privacy is the right to be left alone. It is a fundamental and compelling interest. It protects our homes, our families, our thoughts, our emotions, our expressions, our personalities, our freedom of communion, and our freedom to associate with the people we choose …. [¶] The right of privacy is an important American heritage and essential to the fundamental rights guaranteed by the First, Third, Fourth, Fifth and Ninth Amendments to the U.S. Constitution. This right should be abridged only when there is a compelling public need ….”’ (Italics added.)

That ballot argument evidenced the voters’ intent in 1972 to ensure a right of privacy not only in one’s family but also in one’s home.2 The question now is whether that right comprehends the right to live with whomever one wishes or, at least, to live in an alternate family with persons not related by blood, marriage, or adoption.

Does the ordinance’s rule-of-five truly and substantially help effect those goals? Looking first at the final two words in section 28.15.005, is a “residential environment” in fact dependent on a blood, marriage, or adoption relationship among the residents of a house? Is transiency, for example, determined by lack of any biological or marriage relation among the residents? We are not persuaded by facts presented here.

Other aims of the ordinance’s restrictions are to maintain “the essential characteristics of the districts” and “a suitable environment for family life where [in single-family zones only] children are members of most families.” But the rule-of-five is not pertinent to noise, traffic or parking congestion, kinds of activity, or other conditions that conceivably might alter the land-use-related “characteristics” or “environment” of the districts.

Is another assumption behind the rule, perhaps, that groups of unrelated persons hazard an immoral environment for families with children? That implied goal would not be legitimate.

Finally, could not each of the city’s stated goals be enhanced by means that are less restrictive of freedom than is the rule-of-five? To illustrate, “residential character” can be and is preserved by restrictions on transient and institutional uses (hotels, motels, boarding houses, clubs, etc.). Population density can be regulated by reference to floor space and facilities. Noise and morality can be dealt with by enforcement of police power ordinances and criminal statutes. Traffic and parking can be handled by limitations on the number of cars (applied evenly to all households) and by off-street parking requirements. In general, zoning ordinances are much less suspect when they focus on the use than when they command inquiry into who are the users

We do not here address the question, How many people should be allowed to live in one house? We merely hold invalid the distinction effected by the ordinance between (1) an individual or two or more persons related by blood, marriage, or adoption, and (2) groups of more than five other persons.

 

Robbins v. Superior Court (1985), 38 Cal.3d 199

Robbins v. Superior Court (1985), 38 Cal.3d 199, 211 Cal.Rptr. 398

BIRD, C. J.

Does a county violate Welfare and Institutions Code section 17000 et seq. or the California Constitution when it requires its residents who are single, employable and eligible for general assistance benefits to live in a county facility in lieu of cash benefits?

[Discussion of the procedural and statutory issues in the case omitted. Ed.]

Plaintiffs also contend that defendants’ “in-kind” benefits program violates their constitutional right to privacy [under] Article I, section 1 of the California Constitution. The right to privacy was added to the California Constitution by the voters in 1972. The ballot pamphlet, which was distributed to the voters prior to the election, stated that the constitutional right to privacy encompassed a variety of rights involving private choice in personal affairs. “The right to privacy is the right to be left alone. It is a fundamental and compelling interest. It protects our homes, our families, our thoughts, our emotions, our expressions, our personalities, our freedom of communion, and our freedom to associate with the people we choose.”

This court has recognized that the “principal ‘mischiefs”’ at which the constitutional amendment was directed were the uncontrolled collection and use of personal information gathered by government and business interests. However, the right to privacy has been held to protect a diverse range of personal freedoms [including the] right of procreative choice [and the] right of unmarried person to cohabit.

Plaintiffs argue persuasively that the County’s “in-kind” benefits policy infringes upon their constitutional right to privacy. Residence at the Bannon Street facility compels the individual to give up his home and the ability to choose his associates. He is forced to live in a particular location without the freedom to choose his own living companions. Further, an acute loss of personal privacy is inevitable where residents sleep in dormitories, eat in a cafeteria, use the same bathrooms, and live according to institutionally prescribed rules of conduct.

When receipt of a public benefit is conditioned upon the waiver of a constitutional right, the “government bears a heavy burden of demonstrating the practical necessity for the limitation.” [The Court then rejected all four justifications offered by the County for its policy.] For all of these reasons, it would appear that plaintiffs are likely to succeed on the merits of their constitutional challenge. Therefore, the trial court should have granted the request for a preliminary injunction.

 

Hernandez v. Hanford (2007), 41 Cal.4th 279

GEORGE, C.J.

This case involves a constitutional challenge to a zoning ordinance enacted by the City of Hanford in 2003. In order to protect the economic viability of Hanford’s downtown commercial district — a prominent feature of which is a large number of regionally well-regarded retail furniture stores — the challenged ordinance generally prohibits the sale of furniture in another commercial district in Hanford (currently designated the Planned Commercial or PC district) that contains a large shopping mall in which several department stores as well as other retail stores are located. At the same time, the ordinance creates a limited exception to the general prohibition on the sale of furniture in the PC district, permitting large department stores (those with 50,000 or more square feet of floor space) located within that district to sell furniture within a specifically prescribed area (occupying no more than 2,500 square feet of floor space) within the department store.

The owners of a “stand-alone” home furnishings and mattress store located within the PC district, who wished to sell bedroom furniture along with mattresses and home accessories (such as lamps and carpets) in their store, brought this action contesting the validity of the foregoing provisions of the zoning ordinance. The trial court rejected the constitutional challenge, but the Court of Appeal disagreed with the trial court’s determination. The Court of Appeal concluded that although the ordinance’s general prohibition of the sale of furniture in the PC district was reasonably related to a legitimate governmental interest — the preservation of the economic viability of the downtown commercial district — the ordinance’s exception permitting limited furniture sales only by large department stores in the PC district violated equal protection principles by drawing an unwarranted distinction between large department stores and other retail stores located within the PC district.” . . . . We granted the city’s petition for review to consider the validity of the Court of Appeal’s determination that the ordinance is unconstitutional.

We conclude that the Court of Appeal erred in finding the ordinance unconstitutional. As we shall explain, the appellate court’s analysis fails adequately to take into account the two legitimate purposes underlying the ordinance in question: (a) the objective of protecting and preserving the economic viability of the city’s downtown commercial district by generally prohibiting within the PC district a particular retail activity — the sale of furniture — that is a prominent feature of the downtown commercial district, and (b) the objective of attracting to, and retaining within, the city’s PC district the type of large department stores (which typically carry furniture) that the city views as essential to the economic viability of the PC district. Restricting the ordinance’s limited exception for the sale of furniture within the PC district to sales by large department stores — and only such stores — is rationally related to the second of these legislative purposes served by the ordinance. Accordingly, we conclude that the decision rendered by the Court of Appeal, invalidating the zoning ordinance here at issue, must be reversed.

Before reaching the equal protection issue upon which the Court of Appeal based its decision⁴⁵, we turn first to the more general (and more sweeping) contention that plaintiffs raised below and upon which they continue to rely in this court—that the zoning ordinance at issue is invalid because the “primary purpose” of the ordinance’s general prohibition of the sale of furniture in the PC district assertedly was to “regulate economic competition.”

Our court has not previously had occasion to address the question whether a municipality, in order to protect or preserve the economic viability of its downtown business district or neighborhood shopping areas, may enact a zoning ordinance that regulates or controls competition by placing limits on potentially competing commercial activities or development in other areas of the municipality. More than a half-century ago, however, this court explained that “it is well settled that a municipality may divide land into districts and prescribe regulations governing the uses permitted therein, and that zoning ordinances, when reasonable in object and not arbitrary in operation, constitute a justifiable exercise of police power. Even when the regulation of economic competition reasonably can be viewed as a direct and intended effect of a zoning ordinance or action, so long as the primary purpose of the ordinance or action — that is, its principal and ultimate objective — is not the impermissible private anticompetitive goal of protecting or disadvantaging a particular favored or disfavored business or individual, but instead is the advancement of a legitimate public purpose — such as the preservation of a municipality’s downtown business district for the benefit of the municipality as a whole — the ordinance reasonably relates to the general welfare of the municipality and constitutes a legitimate exercise of the municipality’s police power.

In the present case, it is clear that the zoning ordinance’s general prohibition on the sale of furniture in the PC district — although concededly intended, at least in part, to regulate competition — was adopted to promote the legitimate public purpose of preserving the economic viability of the Hanford downtown business district, rather than to serve any impermissible private anticompetitive purpose. Furthermore, . . . here the zoning ordinance’s restrictions are aimed at regulating “where, within the city” a particular type of business generally may be located, a very traditional zoning objective. Under these circumstances, we agree with the lower courts’ conclusion that the zoning ordinance cannot be found invalid as an improper limitation on competition.

 

Due process

Cal. Constitution Art. I, secs. 7, 17

ARTICLE 1 DECLARATION OF RIGHTS

SEC. 7. (a) A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws; provided, that nothing contained herein or elsewhere in this Constitution imposes upon the State of California or any public entity, board, or official any obligations or responsibilities which exceed those imposed by the Equal Protection Clause of the 14th Amendment to the United States Constitution with respect to the use of pupil school assignment or pupil transportation. In enforcing this subdivision or any other provision of this Constitution, no court of this State may impose upon the State of California or any public entity, board, or official any obligation or responsibility with respect to the use of pupil school assignment or pupil transportation, (1) except to remedy a specific violation by such party that would also constitute a violation of the Equal Protection Clause of the 14th Amendment to the United States Constitution, and (2) unless a federal court would be permitted under federal decisional law to impose that obligation or responsibility upon such party to remedy the specific violation of the Equal Protection Clause of the 14th Amendment of the United States Constitution.

Except as may be precluded by the Constitution of the United States, every existing judgment, decree, writ, or other order of a court of this State, whenever rendered, which includes provisions regarding pupil school assignment or pupil transportation, or which requires a plan including any such provisions shall, upon application to a court having jurisdiction by any interested person, be modified to conform to the provisions of this subdivision as amended, as applied to the facts which exist at the time of such modification.

In all actions or proceedings arising under or seeking application of the amendments to this subdivision proposed by the Legislature at its 1979-80 Regular Session, all courts, wherein such actions or proceedings are or may hereafter be pending, shall give such actions or proceedings first precedence over all other civil actions therein.

Nothing herein shall prohibit the governing board of a school district from voluntarily continuing or commencing a school integration plan after the effective date of this subdivision as amended

In amending this subdivision, the Legislature and people of the State of California find and declare that this amendment is necessary to serve compelling public interests, including those of making the most effective use of the limited financial resources now and prospectively available to support public education, maximizing the educational opportunities and protecting the health and safety of all public school pupils, enhancing the ability of parents to participate in the educational process, preserving harmony and tranquility in this State and its public schools, preventing the waste of scarce fuel resources, and protecting the environment

(b) A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens. Privileges or immunities granted by the Legislature may be altered or revoked.

 

Procedural due process

Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306 (1950)

[In an opinion reviewing procedures for notifying potential beneficiaries of settlement of a trust fund, Justice Harold Burton summed up the essence of procedural due process:]

Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.

 

People v. Ramirez (1979), 25 Cal.3d 260

People v. Ramirez (1979), 25 Cal.3d 260, 158 Cal.Rptr. 316, 599 P.2d 622

[from the Summary of the opinion:] Two years after defendant, convicted of a drug offense and committed to the California Rehabilitation Center for treatment, had been granted outpatient status, he was arrested and charged with resisting arrest and disturbing the peace. The first charge was dropped, defendant pleaded guilty to the second, and the Director of Corrections subsequently found defendant was “not a fit subject for confinement or treatment” in the center. After a hearing on the propriety of the order excluding defendant from the center, the trial court held the director did not abuse his discretion. Defendant’s commitment was subsequently terminated and criminal proceedings against him were resumed. He was sentenced to state prison for the narcotics offense, and was granted probation for the misdemeanor. The Supreme Court reversed.]

Mosk, J.

Appellant contends the procedures used by the CRC in excluding him from its program denied him his constitutional right to procedural due process. We agree

The initial question presented is whether the due process clauses of the California Constitution mandate that an individual be granted procedural protections prior to his exclusion from the CRC. [After reviewing decisions by the United States Supreme Court, Justice Mosk concluded:] The foregoing analysis leads us to conclude that the federal approach for determining whether a due process liberty interest is at stake masks fundamental values that underlie the clause. Initially, the approach fails to give sufficient weight to the important due process value of promoting accuracy and reasonable predictability in governmental decision making when individuals are subject to deprivatory action.

The Supreme Court itself has stated that “The touchstone of due process is protection of the individual against arbitrary action of government.” The federal approach also undervalues the important due process interest in recognizing the dignity and worth of the individual by treating him as an equal, fully participating and responsible member of society

We therefore hold that the due process safeguards required for protection of an individual’s statutory interests must be analyzed in the context of the principle that freedom from arbitrary adjudicative procedures is a substantive element of one’s liberty. This approach presumes that when an individual is subjected to deprivatory governmental action, he always has a due process liberty interest both in fair and unprejudiced decision-making and in being treated with respect and dignity. Accordingly, it places front and center the issue of critical concern, i.e., what procedural protections are warranted in light of governmental and private interests.

The extent to which due process relief will be available depends on a careful and clearly articulated balancing of the interests at stake in each context. In some instances this balancing may counsel formal hearing procedures that include the rights of confrontation and cross-examination, as well as a limited right to an attorney. In others, due process may require only that the administrative agency comply with the statutory limitations on its authority. More specifically, identification of the dictates of due process generally requires consideration of (1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the dignitary interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official, and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

[After reviewing the procedures involved in committing an individual to the California Rehabilitation Center, Justice Mosk concluded:] the due process clause entitles the patient-inmate to an opportunity to respond to the grounds for the exclusion prior to the final exclusion decision. To make such an opportunity meaningful, the patient-inmate must be given a statement of those grounds, access to the information that the Director considered in reaching his decision, and notice of the right to respond. He also must be permitted to exercise his right to respond orally before a responsible official if he so chooses. Such oral participation may be useful in resolving conflicting information and in the introduction of subjective factors into the decision-making process that might otherwise not be considered; it thereby may often tend to enhance the accuracy and reliability of the exclusion decision. And even in cases in which such participation is unlikely to affect the outcome of the decision, it nevertheless promotes important dignitary values that underlie due process.

A more difficult question is whether confrontation, cross-examination, and other formal hearing rights must be provided. The principal value fostered by such rights in these circumstances is that of promoting accuracy and reliability in governmental decision-making. (As previously discussed, the Director’s decision is evaluative in nature and based on his specialized subjective judgment; that judgment depends on consideration of a host of intangible factors rather than on the existence of particular and contestable facts. As a result, more formal procedures than those previously identified would not reduce the likelihood of an erroneous determination, unless the individual challenging the decision could confront and cross-examine all the experts and persons who contributed information to his case history and to his psychiatric reports and criminal record. Even then, the marginal value to the individual would seem to be relatively insignificant because of the difficulties inherent in challenging the subjective aspects of an evaluative-type decision. Moreover, such extensive procedures would substantially impair administrative efficiency. Consequently we do not believe they are needed to protect the interests of the excluded CRC patient-inmate.

Finally, appellant is entitled to a statement of the final decision and reasons therefor in writing.

BIRD, C.J., Concurring and Dissenting.

I concur in the lead opinion’s discussion of the scope of the due process clauses of the California Constitution and in the conclusion that those constitutional provisions mandate that an individual committed to the California Rehabilitation Center (CRC) be afforded adequate notice and hearing before being excluded from CRC. However, I cannot agree with that part of the lead opinion which leaves an individual largely defenseless at that hearing. In stripping an individual of his right to present evidence, to call witnesses, and to confront and cross-examine the state’s witnesses, this court ignores the requirements of procedural due process.

 

Substantive due process

Stimson Mill Co. v. Braun (1902), 136 Cal. 122

HARRISON, J. [In an appeal from a lower court decision construing the terms of a construction contract, Justice Harrison stated that:] The court held that the provision in the contract that all the old material of the building not used in its reconstruction was to be the property of the contractors was in effect a part of the contract price for the improvement, and being in violation of the provision of section 1184 of the Code of Civil Procedure, that the whole contract price shall be in money, the labor done and materials furnished by the plaintiffs were, under another provision in the section, deemed to have been done and furnished at the personal instance and request of the appellants.

This provision of section 1184 is as follows: “As to all liens, except that of the contractor, the whole contract price shall be payable in money. … In case such contracts and alterations do not conform substantially to the provisions of this section, the labor done and materials furnished by all persons, except the contractor, shall be deemed to have been done and furnished at the personal instance and request of the person who contracted with the contractor, and they shall have a lien for the value thereof.” The section does not declare a contract not made in these terms to be void, but while holding that it is valid between the owner and the contractor, it purports to give to the material-men and laborers the right to enforce payment from the owner of the value of the materials and labor furnished by them, irrespective of the contract price or compensation agreed upon between him and the contractor, notwithstanding he may have fully and strictly complied with the terms of the contract

The provision in the constitution respecting mechanics’ liens [currently Art. XIV, sec. 3] is subordinate to the Declaration of Rights in the same instrument, which declares (art. I, sec. 1) that all men have the inalienable right of “acquiring, possessing and protecting property,” and that no person shall be deprived of property “without due process of law.” The right of property antedates all constitutions, and the individual’s protection in the enjoyment of this right is one of the chief objects of society. He has the right to enjoy his property and improve the same according to his own desires in any way consistent with the rights of others, subject only to the just demands of the state. This right is invaded if he is not at liberty to contract with others respecting the use to which he may subject his property, or the manner in which he may enjoy it. The legislature may prescribe the form in which contracts shall be executed in order that they may be valid or binding, but it cannot limit the right of parties to incorporate into their contracts respecting property, otherwise valid, such terms as may be mutually satisfactory to them. A statute declaring invalid any contract by the owner of real property, for the construction of a building thereon, unless it is provided therein that the contract price shall be payable only in money, is unconstitutional in that it is an infringement upon the right of the owner in the possession and enjoyment of his property. The legislature could with equal right declare that all contracts for the sale of merchandise, or for the manufacture of machinery, or for the employment of artisans, should be invalid unless they should provide that the payment thereunder should be made only in money. The right of the owner of land to contract with a builder for its improvement and to compensate him therefor with other real property, or with personal property other than money, is the same, and as inalienable, as the right of the owner of any other property to contract respecting the payment for any improvement thereof.

 

Ex parte Quarg (1906), 148 Cal. 79

Ex parte Quarg (1906), 149 Cal. 79, 84 P. 766 (

SHAW, J.

The act of March 18, 1905, added a new section to the Penal Code, numbered 526, which reads as follows: “Every person who sells or offers for sale any ticket or tickets to any theater or other public place of amusement at a price in excess of that charged originally by the management of such theater or public place of amusement is guilty of a misdemeanor.” The petitioner is in custody upon conviction of a violation of this section, and seeks a discharge on the ground that the provisions of the section are unconstitutional, and consequently that the judgment of conviction is void.

The constitutional guaranty securing to every person the right of “acquiring, possessing, and protecting property,” refers to the right to acquire and possess the absolute and unqualified title to every species of property recognized by law, with all the rights incidental thereto, and, in connection with the right of personal liberty, it includes the right to dispose of such property in such innocent manner as he pleases, and to sell it for such price as he can obtain in fair barter. Any statute which interferes with this right, except in cases where the public health, morals, or safety, or the general welfare authorizes such restriction as an exercise of the police power, is, to the extent of such interference, unconstitutional and void. These rights are in fact inherent in every natural person, and do not depend on constitutional grant or guaranty. Under our form of government by constitution, the individual, in becoming a member of organized society, unless the constitution states otherwise, surrenders only so much of these personal rights as may be considered essential to the just and reasonable exercise of the police power in furtherance of the objects for which it exists.

It is, perhaps, not important in this case to consider and define the precise nature of a theater ticket. Such a ticket . . . represents a right, positive or conditional, as the case may be, according to the terms of the original contract of sale. This right is clearly a right of property. The ticket which represents that right is also necessarily a species of property. As such, the owner thereof, in the absence of any condition to the contrary in the contract by which he obtained it, has the clear right to dispose of it; to sell it to whom he pleases and at such price as he can obtain. The statute in question forbids any sale for a price higher than that at which it was sold by the proprietor of the theater, and, to that extent, it infringes upon the right of property guaranteed by the constitution and existing in the individual. It is therefore a void enactment, unless it can be upheld as an exercise of the police power.

The police power is broad in its scope, but it is subject to the just limitation that it extends only to such measures as are reasonable in their application and which tend in some appreciable degree to promote, protect, or preserve the public health, morals, or safety, or the general welfare. The prohibition of an act which the court can clearly see has no tendency to affect, injure, or endanger the public in any of these particulars, and which is entirely innocent in character, is an act beyond the pale of this limitation, and it is therefore not a legitimate exercise of police power. The sale of a theater ticket at an advance upon the original purchase price, or the business of reselling such tickets at a profit, is no more immoral, or injurious to public welfare or convenience, than is the sale of any ordinary article of merchandise at a profit.

It is perhaps unnecessary to add that the right to attend a theater is not so sacred or important in character as to require or justify legislation regulating the price of admission. Viewed in any aspect, we think the legislation in question is an unwarrantable interference with the inherent and constitutional rights of individuals, and for that reason is void.

 

State Board of Dry Cleaners v. Thrift-D-Lux Cleaners (1953), 40 Cal. 2d 436

State Bd. of Dry Cleaners v. Thrift-D-Lux Cleaners (1953),

40 Cal.2d 436, 254 P.2d 29

SHENK, J.

[This case challenged the constitutionality of the 1945 Dry Cleaners’ Act, which among other things set minimum prices for dry cleaning services.]

If the statute can be sustained as constitutional it is because it is a reasonable exercise of the police power of the state. Under the law generally that power extends to legislation enacted to promote the public health, safety, morals and general welfare. (It has rightly been said that “such [police] regulations may validly be imposed if they constitute a reasonable exertion of governmental authority for the public good. If there is a proper legislative purpose, a law enacted to carry out that purpose, if not arbitrary nor discriminatory, must be upheld by the courts.” However, in the exercise of the police power the law places limits on the discretion of the Legislature. Whether there has been a reasonable exercise of this power is a court question.

The previous enactment of these statutes [regulating the processes of dry cleaning] furnish support for the conclusion that they were designed to and do fully protect the public health and safety and that the price-fixing features of the present statute have no function to that end. On the contrary they constitute an unnecessary and unreasonable restriction on the pursuit of private and useful business activities. The asserted objective of those portions of the statute are not in fact their real objective. There is therefore nothing relating to the price charged for such services that has any real or substantial relationship to the public health or safety.

It is claimed that the price-fixing portions of the statute were enacted to provide for the general welfare. But a legislative body may not, under the guise of providing for this component of the police power, impose unnecessary and unreasonable restrictions upon the pursuit of these useful activities. If a statute has no real or substantial relation to any legitimate police power objective, it is the duty of the court to so declare.

Regardless of the legal terminology used in defining the test employed, any legislation to be justified and supported by the concept of “general welfare” must aim to promote the welfare of a properly classified segment of the general public as contrasted with that of a small percentage or a special class of the body politic where no such classification can be justified. The statute before us . . . seeks to establish but a single grade of work in the dry cleaning industry and to eliminate the economical cleaning job. It does not take into consideration the “skill or efficiency of operation, excellence and completeness of equipment, desirability of location or expense of conducting business.” It does not consider that a substantial group of the public may choose to purchase a cheaper grade of cleaning for particular garments, knowing that they are not obtaining the quality of service offered by more expensive establishments. The statute does not purport to prevent the imposition of fraud upon the public, nor to eliminate destructive and unfair competition, which practices are adequately legislated against in the Unfair Practices Act.

It must be concluded that the price fixing provision of the statute here involved is invalid because it is not, by any recognized or recognizable standard, an enactment providing for the public health, safety, morals, or general welfare.

From the foregoing it follows that the price fixing provisions of the statute under attack must fall on the constitutional grounds stated, and that the demurrer was properly sustained.

The judgment is affirmed.

TRAYNOR, J. [dissenting]

In my opinion the minimum price provisions of the Dry Cleaners’ Act of 1945 do not violate the due process clause of either the United States Constitution or the California Constitution.

The Legislature has power to determine the rights of persons, subject only to the limitations of the United States Constitution and the California Constitution. A statute regulating commercial transactions does not violate the due process clause of either Constitution unless it is proved so unreasonable as to dispel the presumption that it rests upon some rational basis within the knowledge and experience of the legislators. Judicial inquiry “where the legislative judgment is drawn into question, must be restricted to the issue whether any state of facts either known or which could reasonably be assumed affords support for it.” The statute in the present case, like any other regulation of private enterprise, must be considered in this light.

The dry cleaning industry has an unhappy history of ruthless competition marked by destructive price cutting and retaliatory sabotage. Early attempts at voluntary price regulation by internal agreements were struck down by the courts. Thereafter, price cutting was fought by sabotage. The chaotic state of the industry was brought to light in People v. Cowan (1940), 38 Cal.App.2d 231 [101 P.2d 125], a murder prosecution arising out of an attempt to sabotage a dry cleaner who cut his prices, and in People v. Black (1941), 45 Cal.App.2d 87 [113 P.2d 746], a prosecution for conspiracy to commit sabotage by placing metallic potassium in garments sent to a price cutter. It was there revealed that a substantial number of industry members were guilty of unlawful attacks on retailers who cut prices.

The dry cleaning business is highly vulnerable to price wars and their attendant evils. The industry represents millions of dollars in plants and equipment and requires the labor of thousands of skilled workers. It is subject to intense short-period fluctuations. The dry cleaner cannot hedge against these fluctuations by stock-piling inventory or by large-scale buying of raw materials. He cannot supply his market in advance, lay off help, and wait for demand to catch up with supply as a manufacturer ordinarily can. A dry cleaner is under constant pressure to cut his prices, increase his volume, and reduce his costs. Other cleaners follow suit and the price cuts inevitably result in downgrading of service. The cleaning industry is particularly susceptible to down-grading: its processes are highly specialized and it is difficult to police against slipshod performance or to detect it. Destructive price cutting quickly starts a vicious train of sabotage, violence, eventual bankruptcy for many cleaners, and disruption of a service industry essential to the public health.

The Legislature could reasonably conclude that the economic waste, the loss of property, the violation of law, the threat to health and public convenience, could be prevented by elimination of price warfare through establishment of minimum price schedules. It could reasonably conclude that a measure of economic security would encourage compliance with health and safety regulations and the maintenance of the industry’s capacity to meet the fluctuating demand of the public at reasonable prices. Disruption of business by destructive competition has long been recognized as an evil that may be controlled by the Legislature.

The real basis for the result reached by the majority opinion * is an adherence to an economic view that minimum price legislation is not in the best interests of the general public. But as Mr. Justice Holmes long admonished, the economic and moral beliefs of the judiciary are not embedded in the Constitution. There is no reason to suppose that judges are better qualified than legislators to determine what social and economic programs should be adopted by the State of California.

I would reverse the judgment on the ground that plaintiff has stated a cause of action under a valid statute.

Gibson, C. J., and Carter, J., concurred [in the dissenting opinion].

 

Hale v. Morgan (1978), 22 Cal.3d 388

Hale v. Morgan (1978), 22 Cal.3d 388, 149 Cal.Rptr. 375, 584 P.2d 512

RICHARDSON, J.

We consider constitutional challenges to Civil Code section 789.3, which assesses a penalty of $100 per day against a landlord who wilfully deprives his tenant of utility services for the purpose of evicting the tenant. We will conclude that the penalties provided by the section, while surviving an attack on the grounds of equal protection of the laws, may, under particular circumstances, violate the due process provisions of both the federal and our state Constitutions, and that the $17,300 sanction herein imposed was excessive. We will, accordingly, reverse the judgment and remand for the determination of a proper award

[The Court first held that the statute did not violate the equal protection clauses of the federal and state constitutions.] Defendant contends alternatively that the penalty herein imposed violates the due process clauses of the federal and state Constitutions. For reasons which we hereafter develop, we agree that section 789.3 permits the assessment of arbitrary, excessive and unreasonable penalties and that the penalty sustained by defendant in this case exceeded constitutional limits

In reaching these conclusions, we are guided by certain well settled principles. In the exercise of its police power a Legislature does not violate due process so long as an enactment is procedurally fair and reasonably related to a proper legislative goal. The wisdom of the legislation is not at issue in analyzing its constitutionality, and neither the availability of less drastic remedial alternatives nor the legislative failure to solve all related ills at once will invalidate a statute.

The due process clauses, federal and state, are the most basic substantive checks on government’s power to act unfairly or oppressively. As such, they protect against infringements by the state upon those ‘fundamental‘ rights ‘implicit in the concept of ordered liberty.

[After reviewing various potential misapplications of the statute to varying landlord-tenant relationships, Justice Richardson concluded:] In summary, operation of the penalty provided by section 789.3 is mandatory, mechanical, potentially limitless in its effect regardless of circumstance, and capable of serious abuse. Its severity appears to exceed that of sanctions imposed for other more serious civil violations in California and for similar prohibited acts in other jurisdictions. For all of the foregoing reasons in combination, we hold that section 789.3 may, under circumstances such as those herein presented, produce constitutionally excessive penalties.

We cannot conclude, however, that all applications of section 789.3‘s penalty formula would be unconstitutional. The imposition of the $100 daily penalty over a limited period may indeed, in a given case, be a perfectly legitimate means of encouraging compliance with law. Furthermore, there are doubtless some situations in which very large punitive assessments are both proportioned to the landlord’s misconduct and necessary to achieve the penalty’s deterrent purposes.

Where, as here, a penal statute may be subject to both constitutional and unconstitutional applications, courts evaluate the propriety of the sanction on a case-by-case basis.

We are of the view, however, that under all of the circumstances of this case the amount of the penalties is constitutionally excessive. The monthly rental for plaintiff’s trailer space was $65, or $780 for a year. The cumulation of penalties under the statute would have been $36,500 for one year. Almost one-half of this amount, or $17,300, was actually imposed against defendant. While the record does not disclose the purchase price of the park, it is not inconceivable that though plaintiff’s initial entry may have constituted a trespass, and though it was subsequently determined judicially that he breached his rental contract, he may well end up owning the park or a substantial equity therein as a consequence of the application of section 789.3 to defendant’s conduct. Such a confiscatory result is wholly disproportionate to any discernible and legitimate legislative goal, and is so clearly unfair that it cannot be sustained. We must therefore reverse the judgment.

The judgment is reversed and the cause is remanded to the trial court for retrial on the issue of the appropriate penalty only, consistent with the views expressed in this opinion.

Bird, C. J., Tobriner, J., Mosk, J., Clark, J., and Manuel, J., concurred.

NEWMAN, J., Concurring.

Article I, section 17 of the California Constitution commands that ‘excessive fines‘ not be imposed. In my view those two words justify reversal of the judgment here. There is ample reason for concluding that the constitutional prohibition covers civil as well as criminal fines

I do not read the opinions cited by the majority here as harbingers of a disinterred substantive-due-process review. Because of article I, section 17 of the California Constitution such a review indeed seems inappropriate in this case. Since 1937 ‘the [United States Supreme] Court’s abandonment of ‘substantive due process’ review over economic regulation has been constant and unequivocal.‘

 

Liberty v. California Coastal Commission (1980), 113 Cal.App.3d 491

Liberty v. California Coastal Com. (1980), 113 Cal.App.3d 491, 170 Cal.Rptr. 247 (

[Appellant sought a permit to build a restaurant on coastal property. The San Diego Coast Regional Commission granted the permit subject to various restrictions and requirements. The California Coastal Commission approved the permit, but required that appellant dedicate his parking lot to public use until 5:00 pm each day for thirty years.]

COLOGNE, J.

Sections 30534 and 30212 [of the Public Resources Code] make it clear the State Commission may require the dedication of property for access to or along the coast, and we are not called upon to consider the propriety of that condition in the subject permit since Liberty has agreed to it. By contrast, requiring a landowner to provide access to the beach and lagoon areas over a route to which the public may have acquired a prescriptive easement differs substantially from requiring the landowner to dedicate land for free public parking to which the public has no apparent right. Dedication of land for streets to provide reasonable traffic flow for the safety and general welfare of the lot owners and general public is not a taking under the power of eminent domain because it is reasonably related to the increased traffic and other needs of the proposed subdivision.

The power granted under the Act is not confined to the narrow circumspection of precedents, resting on past conditions which do not cover and control present day conditions obviously calling for revised regulations to promote the health, safety, morals or general welfare of the public. The imposition of parking regulations to provide adequate parking for the customers using the restaurant which the petitioner proposes to build is within the power of the State Commission and the fixing of the amount of space so required is a legislative, not a judicial, function and is to be tested solely by answering the question: is there any reasonable basis to support the legislative determination of the regulation’s wisdom and necessity?

The record adequately reflects the need for more parking in this area and the fact the other restaurants have not satisfied the need for parking with the amount of parking area required of them supports the reasonableness of the Commission’s requirement of additional parking. The increased parking required is reasonable and does not contravene principles of due process or equal protection.

We turn now to the requirement the petitioner provide free public parking until 5 p.m. every day for the next 30 years. The only authority the Coastal Act gives the State Commission in this regard is for providing access consistent with needs for public safety and for the protection of public rights, of private property owner rights and of natural resource areas from overuse. The authority of the State Commission to require such a dedication must rest, if at all, on the general police powers of the public entity to protect public access, recreation, marine environment, land resources, development, and industrial development. To provide parking for the use to be made of the land involved is one thing which, as we have noted above, is totally proper. To require a landowner to dedicate property for free public parking far beyond his own land use requirements is a totally different matter.

Whether there has been a reasonable exercise of the police power is a question for the court. Where the conditions imposed are not related to the use being made of the property but are imposed because the entity conceives a means of shifting the burden of providing the cost of a public benefit to another not responsible for or only remotely or speculatively benefiting from it, there is an unreasonable exercise of the police power. While the police power permits reasonable conditions upon the landowner’s proposal, not all conditions are valid. A grant of public privilege may not be conditioned upon the deprivation of constitutional protection. In discussing the constitutional protection against an uncompensated taking of property, it has been said the police power “cannot extend beyond the necessities of the case and be made a cloak to destroy constitutional rights as to the inviolateness of private property”. An arbitrarily conceived exaction will be nullified as a disguised attempt to take private property for public use without resort to eminent domain or as a mask for discriminatory taxation.

Here, the business sought to be developed and to serve this recreational area is likely to increase vehicular traffic. Meeting the need for adequate parking to accommodate that increase is, of course, appropriate. The condition imposed by the Commission requiring 1 space for every 50 square feet of building floor space provides ample parking for the use intended. To go beyond that and require the property owner to provide free parking for the public intending to use the beach and other privately owned restaurants in the area for which ample parking has not been provided is unfair. The State Commission is here attempting to disguise under the police power its actual exercise of the power of eminent domain. That it cannot do.

Judgment reversed with directions to the trial court to issue a peremptory writ in accordance with the views expressed in this opinion.

 

Anthony B. Sanders, “The New Judicial Federalism Before Its Time”