Retroactivity Of The Proposed Marriage Amendment Appears To Have Already Been Anticipated and Addressed By The California Suprmes
Many people are wondering if the recent California Supreme Court decision legalizing same gender marriages (as of June 25, 2008) would in fact be void if the proposed constitutional amendment passed in Novmeber. Well, a careful reading of the recent case seems to address that very issue and answers it this way, “Marriage performed after the case and before the proposed amendment passes (assuming it does) will remain valid.” to quote me.
Take a closer look at In Re Marriage Cases (May 15, 2008) 2008 WL 2051892: “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…. 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. ”The proposed initiative seeks to limit the Constitutional right to marry to certain groups and, thus, is an attempt to revise (as opposed to amend) the Constitution which, as explained in In Re Marriage Cases (May 15, 2008) 2008 WL 2051892, is a fundamental Constructional right to “all individuals and couples, without regard to their sexual orientation.”
“Whether an initiative constitutes an amendment or revision to the Constitution does not necessarily depend on the number of constitutional provisions it affects, but on the nature of the changes it makes. (Grodin et al., The California State Constitution: A Reference Guide, supra, at pp. 303-304.) For a revision to be found, “it must necessarily or inevitably appear from the face of the challenged provision that the measure will substantially alter the basic governmental framework set forth in our Constitution.” See California Assn. of Retail Tobacconists v. State of California (2003) 109 Cal.App.4th 792, 833-834 (quote set forth more fully below).
As Justice Moreno noted in a concurring opinion in Californians For An Open Primary v. McPherson (2006) 38 Cal.4th 735, 788:
Voters can propose amendments to the Constitution that will be placed on the ballot if the requisite number of signatures are obtained, but they may not propose constitutional revisions. (See Cal. Const., art. XVIII, § 3; Raven v. Deukmejian (1990) 52 Cal.3d 336, 349, 276 Cal.Rptr. 326, 801 P.2d 1077.)
See California Assn. of Retail Tobacconists v. State of California (2003) 109 Cal.App.4th 792, 833-834:
Although the electorate may amend the Constitution by initiative (art. XVIII, § 3), a revision of the Constitution may be accomplished only by a constitutional convention and popular ratification (art. XVIII, § 2) or by legislative submission of the measure to the electorate (art. XVIII, § 1). ( Raven v. Deukmejian, supra, 52 Cal.3d at p. 349, 276 Cal.Rptr. 326, 801 P.2d 1077; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 221, 149 Cal.Rptr. 239, 583 P.2d 1281.) It has been suggested “the revision provision is based on the principle that ‘comprehensive changes’ to the Constitution require more formality, discussion and deliberation than is available through the initiative process. [Citation.]” ( Raven v. Deukmejian, supra, 52 Cal.3d at pp. 349-350, 276 Cal.Rptr. 326, 801 P.2d 1077; cf. Legislature v. Eu, supra, 54 Cal.3d at p. 506, 286 Cal.Rptr. 283, 816 P.2d 1309.) The revision/amendment analysis requires the court “to examine both the quantitative and qualitative effects of the measure on our constitutional scheme[, as] [s]ubstantial changes in either respect could amount to a revision. [Citations.]” ( Raven v. Deukmejian, supra, 52 Cal.3d at p. 350, 276 Cal.Rptr. 326, 801 P.2d 1077; Legislature v. Eu, supra, 54 Cal.3d at p. 506, 286 Cal.Rptr. 283, 816 P.2d 1309.) Whether an initiative constitutes an amendment or revision to the Constitution does not necessarily depend on the number of constitutional provisions it affects, but on the nature of the changes it makes. (Grodin et al., The California State Constitution: A Reference Guide, supra, at pp. 303-304.) For a revision to be found, “it must necessarily or inevitably appear from the face of the challenged provision that the measure will substantially alter the basic governmental framework set forth in our Constitution. [Citations.]” ( Legislature v. Eu, supra, 54 Cal.3d at p. 510, 286 Cal.Rptr. 283, 816 P.2d 1309, original italics.)
