Kevin And Don Respond To Being Self Loathing

Looking back at their journey from the Stonewall Democratic Club to Log Cabin Republicans, they claim it was one that was actually started by the democrats. After being told that marriage as not a priority on the agenda in 1995, they became disillusioned with the DEMS. For a decade they felt like they did not belong until they met the republicans of the Log Cabin Republican Club and discovered they too shared a dream of marriage equality. This blog is now a digital time capsule of their time as Republicans and moderated by a friend and supporter.

Thursday, January 26, 2012

Love Free Or Die One Is Not Free When One's Love Is Declared Illegal Love

Strauss v. Horton The Infamous Proposition 8 Decision
Here is a link to my article of May 21, 2008 [CLICK HERE]
The Brilliant Dissent by Associate Justice Carlos Moreno (ret.)
“[T]he ‘absolute equality of all’ persons before the law [is] ‘the very
foundation principle of our government.’ ”
(Varnum v. Brien (Iowa 2009) 763 N.W.2d 862, 877.)
In In re Marriage Cases (2008) 43 Cal.4th 757, 855-856 (Marriage Cases),
we held that denying same-sex couples the right to marry denies them equal
protection of the law. Proposition 8 partially abrogated that decision by amending
the California Constitution to deny same-sex couples fully equal treatment by
adding the words: “Only marriage between a man and a woman is valid or
recognized in California.”
The question before us is not whether the language inserted into the
California Constitution by Proposition 8 discriminates against same-sex couples
and denies them equal protection of the law; we already decided in the Marriage
Cases that it does. The question before us today is whether such a change to one
of the core values upon which our state Constitution is founded can be
accomplished by amending the Constitution through an initiative measure placed 2
upon the ballot by the signatures of 8 percent of the number of persons who voted
in the last gubernatorial election and passed by a simple majority of the voters.
(Cal. Const., art. II, § 8.) Or is this limitation on the scope of the equal protection
clause to deny the full protection of the law to a minority group based upon a
suspect classification such a fundamental change that it can only be accomplished
by revising the California Constitution, either through a constitutional convention
or by a measure passed by a two-thirds vote of both houses of the Legislature and
approved by the voters? (Cal. Const., art. XVIII.)
For reasons elaborated below, I conclude that requiring discrimination
against a minority group on the basis of a suspect classification strikes at the core
of the promise of equality that underlies our California Constitution and thus
“represents such a drastic and far-reaching change in the nature and operation of
our governmental structure that it must be considered a ‘revision’ of the state
Constitution rather than a mere ‘amendment’ thereof.” (Amador Valley Joint
Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 221
(Amador Valley).) The rule the majority crafts today not only allows same-sex
couples to be stripped of the right to marry that this court recognized in the
Marriage Cases, it places at risk the state constitutional rights of all disfavored
minorities. It weakens the status of our state Constitution as a bulwark of
fundamental rights for minorities protected from the will of the majority. I
therefore dissent.1

I agree with part VI of the majority opinion that Proposition 8 does not
invalidate same-sex marriages entered into before its passage. (See maj. opn.,
ante, at p. 13.) I also agree with the majority opinion that Proposition 8 does not
entirely repeal or abrogate a same-sex couple’s substantive state constitutional
right to marry as set forth in the Marriage Cases, but rather carves out an
exception by “reserving the official designation of the term ‘marriage’ for the
union of opposite-sex couples.” (Maj. opn., ante, at p. 7.)3
Equal protection principles lie at the core of the California Constitution and
have been embodied in that document from its inception. (Grodin et al., The
California State Constitution: A Reference Guide (1993) p. 47.) Former section
11 of article I of the original 1849 Constitution stated, “All laws of a general
nature shall have a uniform operation” and section 21 of article I of the 1879
Constitution added, “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.” These provisions were “substantially the equivalent of the equal
protection clause of the Fourteenth Amendment to the United States Constitution.”
(Department of Mental Hygiene v. Kirchner (1965) 62 Cal.2d 586, 588; see Sail’er
Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 15, fn. 13.) In 1974, an express equal
protection clause was added to the California Constitution that mirrors the
language of the Fourteenth Amendment to the United States Constitution.2
Ensuring equal protection prevents “governmental decisionmakers from
treating differently persons who are in all relevant respects alike. [Citation.]”
(Nordlinger v. Hahn (1992) 505 U.S. 1, 10.) The doctrine’s purpose is to protect
“against intentional and arbitrary discrimination.” (Sunday Lake Iron Co. v.
Wakefield (1918) 247 U.S. 350, 352.) As such, it is a shield against arbitrary
government power, because equal protection “requires the democratic majority to
accept for themselves and their loved ones what they impose on you and me.”
(Cruzan v. Director of Missouri Dep’t of Health (1990) 497 U.S. 261, 300 (conc. opn.

The equal protection clause was added to the California Constitution,
article I, section 7, upon the recommendation of the California Constitution
Revision Commission, as part of 1974’s Proposition 7, a ballot measure proposed
by two-thirds of both the Senate and the Assembly, which, according to the
Legislative Counsel’s Digest, “[r]evises, renumbers and specifically provides for
various constitutional rights of persons.” (Legis. Counsel’s Dig., Assem. Const.
Amend. No. 60 (1973-1974 Reg. Sess.) 2 Stats. 1974, Summary Dig., p. 275.)4
of Scalia, J.).) Thus, it is not so much a discrete constitutional right as it is a basic
constitutional principle that guides all legislation and compels the will of the majority
to be tempered by justice. The Iowa Supreme Court, in affirming the constitutional
right of gays and lesbians to marry, recently recognized the importance of this
promise of equality, stating: “If gay and lesbian people must submit to different
treatment without an exceedingly persuasive justification, they are deprived of the
benefits of the principle of equal protection upon which the rule of law is founded.”
(Varnum v. Brien, supra, 763 N.W.2d 862, 905, italics added.)
Of particular importance for this case is that discrimination against disfavored
minorities is presumptively suspect under the equal protection clause. As we affirmed
in the Marriage Cases, supra, 43 Cal.4th at page 842, and as the majority reaffirms
today (maj. opn., ante, at p. 42), sexual orientation is such a suspect classification.
Under our state equal protection jurisprudence, as in federal law, laws that involve
suspect classifications or touch upon fundamental interests are subject to strict
scrutiny, meaning that “ ‘ “ ‘ “the state bears the burden of establishing not only that it
has a compelling interest which justifies the law but that the distinctions drawn by the
law are necessary to further its purpose.” [Citation.]’ ” ’ ” (Marriage Cases, supra,
43 Cal.4th at p. 832, italics omitted.)
The equal protection clause is therefore, by its nature, inherently
countermajoritarian. As a logical matter, it cannot depend on the will of the majority
for its enforcement, for it is the will of the majority against which the equal protection
clause is designed to protect. Rather, the enforcement of the equal protection clause is
especially dependent on “the power of the courts to test legislative and executive acts
by the light of constitutional mandate and in particular to preserve constitutional
rights, whether of individual or minority, from obliteration by the majority.” (Bixby v.
Pierno (1971) 4 Cal.3d 130, 141.)5
California’s equal protection doctrine has not been confined to that of federal
Fourteenth Amendment jurisprudence: “[O]ur state equal protection provisions . . . are
possessed of an independent vitality which, in a given case, may demand an analysis
different from that which would obtain if only the federal standard were applicable.”
(Serrano v. Priest (1976) 18 Cal.3d 728, 764.) The equal protection clause of our
state Constitution is important as a provision of independent force and effect only
when this court extends greater protection under that provision than the high court has
extended under the equal protection clause of the federal Constitution.
The majority upholds Proposition 8 by reasoning that it does not
“fundamentally alter the meaning and substance of state constitutional equal
protection principles as articulated” in the Marriage Cases, because it merely
“carves out a narrow and limited exception to these state constitutional rights,
reserving the official designation of the term ‘marriage’ for the union of oppositesex couples . . . .” (Maj. opn., ante, at p. 7.) The majority protests that it does not
mean to “diminish or minimize the significance that the official designation of
‘marriage’ holds” (ibid.), but that is exactly the effect of its decision.
Denying the designation of marriage to same-sex couples cannot fairly be
described as a “narrow” or “limited” exception to the requirement of equal
protection; the passionate public debate over whether same-sex couples should be
allowed to marry, even in a state that offers largely equivalent substantive rights
through the alternative of domestic partnership, belies such a description. “[T]he
constitutional right to marry . . . has been recognized as one of the basic,
inalienable civil rights guaranteed to an individual by the California Constitution
. . . .” (Marriage Cases, supra, 43 Cal.4th at p. 781.) Prior to the enactment of
Proposition 8, the California Constitution guaranteed “this basic civil right to all
Californians, whether gay or heterosexual, and to same-sex couples as well as to
opposite-sex couples.” (43 Cal.4th at p. 782.) “In light of the fundamental nature 6
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.” (Id. at p. 820, fn. omitted.)
We recognized in the Marriage Cases that “draw[ing] a distinction between
the name for the official family relationship of opposite-sex couples (marriage)
and that for same-sex couples (domestic partnership)” (Marriage Cases, supra, 43
Cal.4th at p. 782) “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.” (Id. at p. 784.) Denying same-sex couples the right to
call their relationships marriages treats them as “ ‘second-class citizens.’ ” (Id. at
p. 785.) As we observed in the Marriage Cases, “there exists a substantial risk
that a judicial decision upholding the differential treatment of opposite-sex and
same-sex couples would be understood as validating a more general proposition
that our state by now has repudiated: that it is permissible, under the law, for
society to treat gay individuals and same-sex couples differently from, and less
favorably than, heterosexual individuals and opposite-sex couples.” (43 Cal.4th at
p. 855.)
Describing the effect of Proposition 8 as narrow and limited fails to
acknowledge the significance of the discrimination it requires. But even a narrow
and limited exception to the promise of full equality strikes at the core of, and thus
fundamentally alters, the guarantee of equal treatment that has pervaded the
California Constitution since 1849. Promising equal treatment to some is
fundamentally different from promising equal treatment to all. Promising
treatment that is almost equal is fundamentally different from ensuring truly equal
treatment. Granting a disfavored minority only some of the rights enjoyed by the 7
majority is fundamentally different from recognizing, as a constitutional
imperative, that they must be granted all of those rights. Granting same-sex
couples all of the rights enjoyed by opposite-sex couples, except the right to call
their “ ‘officially recognized, and protected family relationship’ ” (maj. opn., ante,
at p. 7) a marriage, still denies them equal treatment.
There is no doubt that the ultimate authority over the content of the California
Constitution lies with the people. “All political power is inherent in the people.
Government is instituted for their protection, security, and benefit, and they have the
right to alter or reform it when the public good may require.” (Cal. Const., art. II,
§ 1.) But there are two methods for the people to alter the California Constitution: by
revising it or by amending it. A revision to the Constitution must be initiated by the
Legislature in one of two ways: the Legislature, by a two-thirds vote, “may submit at
a general election the question whether to call a convention to revise the Constitution”
(Cal. Const., art. XVIII, § 2), or the Legislature, by a two-thirds vote, may propose a
revision of the Constitution to be submitted to the voters (Cal. Const., art. XVIII, § 1).
This is in contrast to a constitutional amendment, which can be accomplished by a
majority of the electorate after the signatures of 8 percent of the number of persons
who voted in the last gubernatorial election have qualified it for the ballot. (Cal.
Const., art. II, § 8, subd. (b).)
We have long recognized the importance of this distinction between revising
and amending the Constitution. In Livermore v. Waite (1894) 102 Cal. 113, which
was decided before the initiative process was created in 1911, we observed that, at
that time, there were “two methods by which changes may be effected in [the
California Constitution], one by a convention of delegates chosen by the people for
the express purpose of revising the entire instrument, and the other through the
adoption by the people of propositions for specific amendments that have been
previously submitted to it by two-thirds of the members of each branch of the 8
legislature.” (Id. at p. 117.) We noted that there was a basic difference between the
process of revising the Constitution by means of the constitutional convention and
amending the Constitution. “Under the first of these methods [revision] the entire
sovereignty of the people is represented in the convention. The character and extent
of a constitution that may be framed by that body is freed from any limitations other
than those contained in the constitution of the United States.” (Ibid.) The power of
amendment, however, was much more limited: “The power of the legislature to
initiate any change in the existing organic law is, however, of greatly less extent, and,
being a delegated power, is to be strictly construed under the limitations by which it
has been conferred. . . . The legislature is not authorized to assume the function of a
constitutional convention, and propose for adoption by the people a revision of the
entire constitution under the form of an amendment . . . .” (Id. at pp. 117-118.)
We took care in Livermore to explain the reason for this difference between the
broad power of revision and the greatly limited power of amendment: “The very term
‘constitution’ implies an instrument of a permanent and abiding nature, and the
provisions contained therein for its revision indicate the will of the people that the
underlying principles upon which it rests, as well as the substantial entirety of the
instrument, shall be of a like permanent and abiding nature. On the other hand, the
significance of the term ‘amendment’ implies such an addition or change within the
lines of the original instrument as will effect an improvement, or better carry out the
purpose for which it was framed.” (Livermore v. Waite, supra, 102 Cal. at pp. 118-
119.) 3

The majority contends that “when the entire pertinent passage of the
Livermore decision is considered, it appears reasonable to conclude that the court
in Livermore itself would have recognized that a measure such as Proposition 8
constitutes a constitutional amendment, because in describing the type of measures
that would constitute an amendment, the court in that case noted that ‘some
(footnote continued on next page)9
The emergence of the initiative process did nothing to alter the distinction
between amending and revising the Constitution. The initiative process was created
in 1911 to permit the people to directly enact statutes and amend, but not revise, the
Constitution. As has been well documented and often recounted, the introduction of
direct democracy in California in the form of the initiative, referendum, and recall
process, was in response to government corruption prevalent at the beginning of the
last century. (See Cal. Com. on Campaign Financing, Democracy by Initiative:
Shaping California's Fourth Branch of Government (1992) pp. 36-40.) Corporate
power, principally that of the Southern Pacific Railroad, dominated state government
and had undermined both the independence of the judiciary and the Legislature’s role
as a servant of the popular will. (Id. at pp. 36-38.) Also of concern were corrupt
political bosses and big-city machines. (Id. at pp. 39-40.) Hiram Johnson and his
allies in the Progressive movement sought to restore the connection between

(footnote continued from previous page)
popular wave of sociological reform, like the abolition of the death penalty for
crime, or a prohibition against the manufacture or sale of intoxicating liquors, may
induce a legislature to submit for enactment, in the permanent form of a
constitutional prohibition, a rule which it has the power itself to enact as a law, but
which [as such] might be of only temporary effect.’ [Citation.] In adding to the
California Constitution a provision declaring that marriage shall refer only to a
union between a man and a woman, Proposition 8 would appear to constitute just
the type of discrete ‘popular’ and ‘sociological’ amendment that the Livermore
decision had in mind.” (Maj. opn., ante, at pp. 104-105, fn. omitted.) Yet it is
clear from reading the “entire” passage, that the majority’s interpretation is
dubious, because Livermore speaks in terms of enacting in “permanent form” “a
rule which [the Legislature] has the power itself to enact as a law, but which [as
such] might be of only temporary effect.” (Livermore v. Waite, supra, 102 Cal. at
p. 119.) What is at issue in this case is an alteration in the Constitution that the
Legislature would have no power to enact, and is therefore fundamentally
distinguishable from the type of amendment contemplated by Livermore in the
above passage.10
government and the majority will by allowing the people to bypass an unresponsive
Legislature and enact their own legislation. (Id. at pp. 40-42.)
Although this initiative process was thereby instituted as a remedy for
government corruption, and to free legislation from the influence of powerful
special interests and the Legislature’s own self-serving inertia, there is no
indication that this process was intended to prevent courts from performing their
traditional constitutional function of protecting persecuted minorities from the
majority will. There is a fundamental difference between preventing politically
powerful minorities from unduly influencing legislative and judicial decisions on
the one hand, and preventing courts from protecting the rights of disfavored
minorities unable to obtain equal rights through the usual majoritarian processes
on the other. There is no indication that the Progressives who framed the initiative
process were insensible to that distinction, or that they sought to abolish the
judiciary’s role as the guardian of minorities’ fundamental rights.
The initiative process was itself initiated by a 1911 ballot proposition that
amended article IV, section 1 of the Constitution to provide in relevant part that
“the people reserve to themselves the power to propose laws and amendments to
the constitution, and to adopt or reject the same, at the polls independent of the
legislature . . . .” There is no evidence that those enacting the initiative process
intended to alter the distinction between amending and revising the Constitution
that this court had recognized in Livermore v. Waite, supra, 102 Cal. 113, some 17
years earlier, and the language of that decision remains valid today. Nor did the
subsequent 1962 constitutional amendment, Proposition 7, which permitted the
Legislature by a two-thirds vote to propose constitutional revisions to the
electorate short of a constitutional convention (see maj. opn., ante, at pp. 62-64) 11
change the meaning of a revision.4

In Californians for an Open Primary v. McPherson (2006) 38 Cal.4th 735
(Californians for an Open Primary), I attempted in my concurring opinion to
explain why the Legislature was subject to the requirement of article XVIII,
section 1 of the California Constitution that when the Legislature proposes an
amendment of the state Constitution, “[e]ach amendment shall be so prepared and
submitted that it can be voted on separately,” while the Legislature is not subject
to the separate vote requirement when it submits a constitutional revision to the
electorate as per Proposition 7. In accounting for this seeming incongruity, I
reasoned that one of the primary purposes of the separate-vote requirement was to
prevent “logrolling.” (Californians for an Open Primary, supra, 38 Cal.4th at
p. 789 (conc. opn. of Moreno, J.).) I further reasoned that the danger of logrolling
was significantly diminished in the case of an authentic constitutional revision
because “[a] constitutional revision, by its very nature and purpose — systematic,
comprehensive constitutional renovation and reform — appears to be inherently
contrary to the practice of logrolling motivated by political expediency.” (Id. at
p. 790.) The majority cite part of the above statement to suggest that I endorsed a
view that a constitutional revision consists only of “ ‘systematic, comprehensive
constitutional renovation and reform.’ ” (Maj. opn., ante, at p. 64.) But when
taken in context, it is clear that all that was intended was that one aspect of a
legitimate constitutional revision is that it not be used to circumvent the
separate-vote rule and engage in logrolling, and that historically the Legislature
has not used the revision process in that manner. (38 Cal.4th at pp. 790-791 (conc.
opn. of Moreno, J.).) Nothing in my concurring opinion in Californians for an
Open Primary considers whether depriving a suspect class of a fundamental right
may be accomplished through a constitutional amendment.
“[T]he underlying principles upon which [the
Constitution] rests . . . shall be of a . . . permanent and abiding nature” and may
only be altered by revising, rather than amending, the Constitution. (Livermore v.
Waite, supra, 102 Cal. at pp. 118-119.)
As discussed, there is no “underlying” principle more basic to our
Constitution than that the equal protection clause protects the fundamental rights
of minorities from the will of the majority. Accordingly, Proposition 8’s
withdrawal of any of those rights from gays and lesbians cannot be accomplished
through constitutional amendment. 12
The majority concludes that in order to constitute a revision, a change in the
Constitution must effect a “fundamental change in the basic governmental plan or
framework established by the preexisting provisions of the California Constitution ―
that is ‘in [the government’s] fundamental structure or the foundational powers of its
branches.’ [Citation.]” (Maj. opn., ante, at p. 86.) The cases cited by the majority do
indeed hold that a change to the Constitution that alters the structure or framework of
government is a revision, but these cases do not, as the majority erroneously
concludes, also stand for the inverse of this proposition: that a change to the
Constitution that does not alter the structure or framework of the Constitution cannot
constitute a revision and, thus, necessarily must be an amendment. The reason is
simple. None of the cases cited by the majority considered this issue, because it was
not raised.
We recognized in Amador Valley that whether a proposed amendment
constitutes a revision could turn on either the scope or the substance of the proposed
change: “[O]ur analysis in determining whether a particular constitutional enactment
is a revision or an amendment must be both quantitative and qualitative in nature. For
example, an enactment which is so extensive in its provisions as to change directly the
‘substantial entirety’ of the Constitution by the deletion or alteration of numerous
existing provisions may well constitute a revision thereof. However, even a relatively
simple enactment may accomplish such far reaching changes in the nature of our
basic governmental plan as to amount to a revision also. In illustration, the parties
herein appear to agree that an enactment which purported to vest all judicial power in
the Legislature would amount to a revision without regard either to the length or
complexity of the measure or the number of existing articles or sections affected by
such change.” (Amador Valley, supra, 22 Cal.3d at p. 223, italics added.) We also
rejected as hyperbolic the arguments that Proposition 13 constituted a major change in 13
governmental structure involving loss of home rule or of a republican form of
government. (22 Cal.3d at pp. 224-228.)
In Brosnahan v. Brown (1982) 32 Cal.3d 236, 243, we considered the validity
of the 1982 Proposition 8 which, among other things, amended the Constitution by
adding article I, section 28, subdivision (d) (section 28(d)) to the California
Constitution — the so-called “truth-in-evidence provision,” which provides that
“relevant evidence shall not be excluded in any criminal proceeding.” This court
quickly rejected the argument that the initiative was “such a ‘drastic and far-reaching’
measure” that it constituted a revision rather than an amendment to the Constitution.
(Brosnahan, supra, 32 Cal.3d at p. 260.) Citing our decision in Amador Valley, the
court employed both a quantitative and qualitative analysis. The court concluded:
“From a qualitative point of view, while [the 1982] Proposition 8 does accomplish
substantial changes in our criminal justice system, even in combination these changes
fall considerably short of constituting ‘such far reaching changes in the nature of our
basic governmental plan as to amount to a revision . . . .’ [Citations.]” (Brosnahan,
supra, 32 Cal.3d at p. 260.) We further rejected the contentions that the 1982
Proposition 8 would lead to significant changes in the structure of government
because it would result in “(1) the inability of the judiciary to perform its
constitutional duty to decide cases, particularly civil cases; and (2) the abridgement of
the constitutional right to public education,” comparing this dire forecast to the
predictions of loss of home rule and republican government we found baseless in
Amador Valley. (Brosnahan, supra, 32 Cal.3d at p. 261.)
In its concluding statement, the Brosnahan court substituted the word
“framework” for the word “plan” in restating the rule in Amador Valley that a revision
must alter “our basic governmental plan” (Amador Valley, supra, 22 Cal.3d at p. 223),
stating: “For the above reasons, nothing contained in [the 1982] Proposition 8
necessarily or inevitably will alter the basic governmental framework set forth in our 14
Constitution. It follows that Proposition 8 did not accomplish a ‘revision’ of the
Constitution . . . .” (Brosnahan, supra, 32 Cal.3d at p. 261.) The court in Brosnahan
did not discuss or explain why it substituted the word “framework” for the word
“plan.” Nothing in the opinion in Brosnahan indicates that the court attached any
significance to this single use of the word “framework.” There is nothing to indicate
that in substituting the word “framework” for the word “plan” in this one instance, the
court meant to signal a departure from its holding in Amador Valley or to restrict its
analysis to whether a proposed amendment would affect the structure of the
government. The decision in Brosnahan never addressed whether the 1982
Proposition 8 revised the Constitution because it altered fundamental rights. Rather, it
simply applied the rule stated in Amador Valley that the amendment was proper
because it did not make “far reaching changes in the nature of our basic governmental
The idea that the electorate may, by amendment, significantly curtail the
constitutional rights of minorities is not, contrary to the majority, squarely supported
by case law. Even in the area of criminal law and procedure, in which the initiative
process has perhaps made its boldest forays into the field of constitutional rights, this
court has stopped short of approving the kind of basic constitutional change at issue in
the present case. In In re Lance W. (1985) 37 Cal.3d 873, 885, this court considered
the 1982 Proposition 8 and rejected the argument that the addition of section 28(d) to
the California Constitution — the “truth-in-evidence provision” — constituted “an
impermissible constitutional revision, rather than amendment, because it abrogates the
judicial function of fashioning appropriate remedies for violation of constitutional
In upholding section 28(d), we equated the power to amend the Constitution to
legislative power: “The Legislature and, a fortiori, the people acting through either
the reserved power of statutory initiative or the power to initiate and adopt 15
constitutional amendments (art. II, § 8) may prescribe rules of procedure and of
evidence to be followed in the courts of this state.” (In re Lance W., supra, 37 Cal.3d
at p. 891.) We thus concluded that restricting the judicially created exclusionary rule
“cannot be considered such a sweeping change either in the distribution of powers
made in the organic document or in the powers which it vests in the judicial branch as
to constitute a revision of the Constitution . . . .” (Id. at p. 892.)
Our decision in Lance W. did state, in dicta and without explanation or citation
to authority: “The people could by amendment of the Constitution repeal section 13 of
article I in its entirety.” (In re Lance W., supra, 37 Cal.3d at p. 892.)5

5 Article I, section 13 of the California Constitution follows closely the text
of the Fourth Amendment to the United States Constitution, stating: “The right of
the people to be secure in their persons, houses, papers, and effects against
unreasonable seizures and searches may not be violated; and a warrant may not
issue except on probable cause, supported by oath or affirmation, particularly
describing the place to be searched and the persons and things to be seized.”
This passing
observation was unnecessary to the decision and carries little weight. In light of the
history of the revision/amendment distinction discussed above, I very much doubt that
those who framed and enacted the 1911 amendment authorizing constitutional
amendment by initiative contemplated the elimination of entire constitutional
provisions incorporating fundamental constitutional rights. This is particularly true
because at the time of the 1911 amendment, the principle that much of the Bill of
Rights is applicable to the states through the Fourteenth Amendment was still largely
undeveloped. (See Tribe, American Constitutional Law (2d ed. 1988) § 11.2, p. 772,
and cases cited therein.) Therefore, eliminating, for example, a prohibition of
unreasonable searches and seizures in 1911 would have meant not merely shaving off
extra state constitutional protections that supplemented underlying federal protections,
but eliminating such protections altogether. There is no evidence, and the majority 16
points to none, that those who enacted the 1911 amendment intended such
nullification of fundamental rights to be within the reach of a simple constitutional
amendment enacted by a majority of the voters.
It is true that Lance W. stands for the proposition that initiative amendments
may scale back judicial remedies that implement the protection of constitutional
rights, but the majority makes the far broader assertion that “the current Proposition 8
is by no means the first instance in which the California Constitution has been altered,
by a constitutional amendment approved by a majority of voters, in a manner that
lessens the state constitutional rights of a minority group that has been the subject of
past discrimination.” (Maj. opn., ante, at p. 95.) The majority cites in support the
amendment to article I, section 7, subdivision (a) of the California Constitution, which
circumscribed public school busing, and Proposition 209, which curtailed affirmative
action programs. (See maj. opn., ante, at pp. 95-96; Hi-Voltage Wire Works, Inc. v.
City of San Jose (2000) 24 Cal.4th 537, 567-568.) Both of these measures limited
remedies for discrimination, but no case has ever held that the Constitution properly
may be amended to deprive a minority group of a fundamental right on the basis of a
suspect classification. Unlike modifying legislative or judicially created remedies,
withholding a fundamental right from a minority group on the basis of a suspect
classification is inherently antithetical to the core principle of equal protection that
minorities are to be protected against the prejudice of majorities by requiring that laws
apply equally to all segments of society.6

The majority also cites in support Proposition 14, a state constitutional
amendment adopted in 1964 that repealed a statutory provision barring racial
discrimination in the sale or rental of housing. As the majority states: “Although
Proposition 14 subsequently was held invalid under the federal Constitution
(Mulkey v. Reitman (1966) 64 Cal.2d 529, affd. sub nom. Reitman v. Mulkey
(1967) 387 U.S. 369), [it] was [not] found to constitute an impermissible
constitutional revision under the state Constitution.” (Maj. opn., ante, at pp.
(footnote continued on next page)17
Nor is Raven v. Deukmejian (1990) 52 Cal.3d 336, 341-343, the one case to
invalidate a portion of an initiative on the grounds that it constituted a qualitative
revision, contrary to my position. In Raven, this court invalidated the portion of
Proposition 115 that amended the California Constitution “to provide that certain
enumerated criminal law rights . . . shall not be construed to afford greater rights to
criminal or juvenile defendants than afforded by the federal Constitution” (Raven,
supra, 52 Cal.3d at pp. 342-343) because it “contemplates such a far-reaching change
in our governmental framework as to amount to a qualitative constitutional revision
. . . .” (Id. at p. 341.) Relying upon the hypothetical example we posed in Amador
Valley, that “an enactment which purported to vest all judicial power in the
Legislature would amount to a revision without regard either to the length or
complexity of the measure” (Amador Valley, supra, 22 Cal.3d at p. 223), we held in
Raven that “Proposition 115 contemplates a similar qualitative change. In essence
and practical effect, new article I, section 24, would vest all judicial interpretive
power, as to fundamental criminal defense rights, in the United States Supreme Court.
From a qualitative standpoint, the effect of Proposition 115 is devastating.” (Raven,
supra, 52 Cal.3d at p. 352.) The court added: “In effect, new article I, section 24,
would substantially alter the substance and integrity of the state Constitution as a
document of independent force and effect.” (Ibid.)

(footnote continued from previous page)
95-96, italics omitted.) But Proposition 14 was not even challenged on the ground
that it constituted an improper revision of the California Constitution, and its
patent violation of the United States Constitution made such a challenge
unnecessary. If “an opinion is not authority for a proposition not therein
considered” (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2), the fact that
certain arguments were not raised at all carries even less weight.18
Our decision in Raven addressed whether a structural change to the
Constitution was a revision, but nothing in our opinion suggests that only a structural
change can constitute a revision. To the contrary, our recognition in Raven that
altering fundamental rights embodied in the Constitution could “substantially alter the
substance and integrity of the state Constitution as a document of independent force
and effect” suggests just the opposite. (Raven, supra, 52 Cal.3d at p. 352.)
Proposition 8 would have a similar effect by emasculating the equal protection clause
of the California Constitution as a provision of independent force and effect. Any
protection of a minority group recognized by this court under the equal protection
clause of our state Constitution that was not recognized by the United States Supreme
Court under the federal Constitution could be abrogated through the initiative process
by a simple majority of the voters.
The majority’s reliance upon the lead opinion in People v. Frierson (1979)
25 Cal.3d 142 (Frierson) is also misguided. That opinion stated the view of only
three justices that the 1972 initiative measure that added a provision to the
California Constitution stating that the death penalty did not constitute cruel or
unusual punishment amended, rather than revised, the Constitution. Each of the
remaining justices made it abundantly clear that they either declined to address
this issue or disagreed with the lead opinion. Nevertheless, the majority treats the
lead opinion as if it were a majority opinion, referring to it as “[o]ur opinion”
(maj. opn., ante, at p. 69), and incorrectly referring to the lead opinion to describe
what “the court concluded” (id. at p. 88). (See also id. at pp. 101-102.)
In a footnote, the majority acknowledges that the lead opinion in Frierson
“was signed by only three justices; four justices declined to join in the opinion’s
discussion” upon which the majority now relies. (Maj. opn., ante, at p. 70, fn. 21.)
Nevertheless, the majority attempts to justify its reliance upon this portion of the
lead opinion in Frierson by noting that a majority of the court in People v. Jackson19
(1980) 28 Cal.3d 264, 315, later upheld the validity of the 1977 death penalty law,
saying that “ ‘[m]ost of the arguments advanced by defendant were discussed at
considerable length in [Frierson] and we do not repeat them here.’ ” (Maj. opn.,
ante, at p. 70, fn. 21.) This cryptic reference to the lead opinion in Frierson does
not establish that the court in Jackson considered whether the 1972 initiative was a
constitutional amendment or a revision, and thus does not serve to transform the
views of three justices in Frierson into a holding of a majority of this court.7
In sum, none of our prior cases discussed above, nor any other case discussed
in the majority opinion, holds that a modification of the California Constitution
I also find unpersuasive the majority’s reliance upon the fact that “[n]o
justice in Frierson, Jackson, or any other decision of this court has disagreed with
the conclusion that [the 1972 initiative measure] constitutes a permissible
amendment to, rather than an impermissible revision of, the California
Constitution, and there can be no question that this resolution of the issue is now a
firmly settled determination.” (Maj. opn., ante, at p. 70, fn. 21.) No citation to
authority follows this unsupportable assertion. There is no authority that supports
the view that this court’s failure to disagree with a conclusion makes it law.
Rather, it is beyond cavil that “an opinion is not authority for a proposition not
therein considered.” (Ginns v. Savage, supra, 61 Cal.2d at p. 524, fn. 2.)

In emphasizing the limits of Frierson, I do not in any sense call into
question the constitutionality of California’s death penalty law. Rather, I share
Justice Mosk’s view that People v. Anderson (1972) 6 Cal.3d 628, which held that
the death penalty violated the state’s constitutional prohibition against cruel or
unusual punishment, was erroneously decided. (Frierson, supra, 25 Cal.3d at
p. 189 (conc. opn. of Mosk, J.).) I therefore find it unnecessary to address the
argument of some of the petitioners that the state’s cruel or unusual punishment
clause is distinguishable from the equal protection clause because the former is not
as inherently countermajoritarian as the latter and, therefore, may be amended by
constitutes a revision only if it alters the structure of government. None of our prior
cases considered whether an amendment to the Constitution could restrict the scope of
the equal protection clause by adding language that requires discrimination based
upon a suspect classification. Nor did these cases consider, as in the present situation,
whether a transfer of the authority to protect the equal rights of a suspect class away
from the judiciary to an electoral majority is the type of structural change that can be
effected by a constitutional amendment. For the reasons discussed above, I believe
this kind of change in the countermajoritarian nature of the equal protection clause is
the type of fundamental alteration that can be done only through a constitutional
It is apparent, moreover, that limiting the definition of revision only to
changes in the structure of government necessarily leads to the untenable conclusion
that even the most drastic and far-reaching changes to basic principles of our
government do not constitute revisions so long as they do not alter the governmental
framework. Counsel for interveners candidly admitted at oral argument that, in his
view, the equal protection clause of the California Constitution could be repealed
altogether by an amendment passed by a bare majority of voters through the initiative
The majority wisely does not embrace this extreme view, but it does not
explain how it avoids it, simply stating that “there is no need for us to consider
whether a measure that actually deprives a minority group of the entire protection of a
fundamental constitutional right or, even more sweepingly, leaves such a group
vulnerable to public or private discrimination in all areas without legal recourse
[citation], would constitute a constitutional revision . . . .” (Maj. opn., ante, at p. 93.)
But the possible basis for limiting the broad rule adopted by the majority is not
apparent. If a change in the Constitution that leaves a minority group vulnerable to
discrimination in all areas might be a revision, why not a change that leaves that 21
group subject to discrimination in most areas, or a change like Proposition 8 that
requires discrimination based upon a suspect classification in one very important
Thus, under the majority’s view, it is not clear what sorts of state constitutional
constraints limit the power of a majority of the electorate to discriminate against
minorities. As petitioners point out, “imagine if Perez v. Sharp, 32 Cal.2d 711
(1948), striking down California’s ban on interracial marriages, had been decided on
state constitutional grounds rather than federal constitutional grounds. And imagine if
a bare majority had attempted to overturn that landmark ruling by enshrining the ban
into the Constitution.” Other equally unattractive hypotheticals suggest themselves.
Under the majority’s reasoning, California’s voters could permissibly amend the state
Constitution to limit Catholics’ right to freely exercise their religious beliefs (Cal.
Const., art. I, § 4), condition African-Americans’ right to vote on their ownership of
real property (id., § 22), or strip women of the right to enter into or pursue a business
or profession (id., § 8). While the federal Constitution would likely bar these
initiatives, the California Constitution is intended to operate independently of (art. I,
§ 24), and in some cases more broadly than (see, e.g., Fashion Valley Mall v. National

In Korematsu v. United States (1944) 323 U.S. 214, Justice Jackson in
dissent decried how the court’s carefully limited opinion in Hirabayashi v. United
States (1943) 320 U.S. 81 sustaining an order imposing a curfew on JapaneseAmericans had led the court to uphold the internment of Japanese-Americans,
stating: “[I]n spite of our limiting words we did validate a discrimination on the
basis of ancestry for mild and temporary deprivation of liberty. Now the principle
of racial discrimination is pushed from support of mild measures to very harsh
ones, and from temporary deprivations to indeterminate ones.” (Id. at p. 247 (dis.
opn. of Jackson, J.).) Justice Jackson observed that once a judicial opinion
establishes a principle, “[t]he principle then lies about like a loaded weapon . . . .
All who observe the work of courts are familiar with what Judge Cardozo
described as ‘the tendency of a principle to expand itself to the limit of its logic.’ ”
(Id. at p. 246, fn. omitted.)22
Labor Relations Board (2007) 42 Cal.4th 850, 857-858), its federal counterpart. 9
The majority criticizes petitioners’ position because “under petitioners’
approach, the people would have the ability ― through the initiative process ― to
extend a constitutional right to a disfavored group that had not previously enjoyed that
right, but the people would lack the power to undo or repeal that very same extension
of rights through their exercise of the identical initiative process.” (Maj. opn., ante, at
p. 100.) Whether or not the above accurately characterizes petitioners’ position, it
does not accurately describe mine. The scenario of a majority of the electorate giving
and then taking away rights does not implicate my objections in the present case: that
Proposition 8 entirely undermines the countermajoritarian nature of the equal
protection clause and usurps the judiciary’s special constitutional role as protector of
minority rights. Therefore, without deciding cases not before us, my reasons for

The majority’s holding essentially strips the state Constitution of its independent
vitality in protecting the fundamental rights of suspect classes. And if the majority
does not avow that such broad constitutional changes could be made by amendment,
but only more “limited” ones, then I disagree with such an implicit distinction. As
discussed, denying gays and lesbians the right to marry, by wrenching minority rights
away from judicial protection and subjecting them instead to a majority vote, attacks
the very core of the equal protection principle.

In Romer v. Evans (1996) 517 U.S. 620, the high court invalidated on equal
protection grounds an amendment to the Colorado Constitution that would have
prohibited the enactment of any law designed to protect homosexuals, repeating
Justice Harlan’s admonition in his dissent in Plessy v. Ferguson (1896) 163 U.S.
537, 559, that the Constitution “neither knows nor tolerates classes among
citizens” and adding: “It is not within our constitutional tradition to enact laws of
this sort. . . . ‘ “Equal protection of the laws is not achieved through
indiscriminate imposition of inequalities.” ’ [Citation.] Respect for this principle
explains why laws singling out a certain class of citizens for disfavored legal
status or general hardships are rare.” (Romer v. Evans, supra, 517 U.S. at p. 633.) 23
concluding that Proposition 8 attempts a constitutional change that can only be
accomplished through revision do not apply to a situation in which an electoral
majority grants and then repeals rights.
I realize, of course, that the right of gays and lesbians to marry in this state has
only lately been recognized. But that belated recognition does not make the
protection of those rights less important. Rather, that the right has only recently been
acknowledged reflects an age-old prejudice (Marriage Cases, supra, 43 Cal.4th at
pp. 821-822, 846, 853) that makes the safeguarding of that right by the judiciary all
the more critical. As the Supreme Court of Iowa recently observed: “[G]ay and
lesbian people as a group have long been the victim of purposeful and invidious
discrimination because of their sexual orientation. The long and painful history of
discrimination against gay and lesbian persons is epitomized by the criminalization of
homosexual conduct in many parts of this country until very recently. [Citation.]
Additionally, only a few years ago persons identified as homosexual were dismissed
from military service regardless of past dedication and demonstrated valor. Public
employees identified as gay or lesbian have been thought to pose security risks due to
a perceived risk of extortion resulting from a threat of public exposure. School-yard
bullies have psychologically ground children with apparently gay or lesbian sexual
orientation in the cruel mortar and pestle of school-yard prejudice. At the same time,
lesbian and gay people continue to be frequent victims of hate crimes. [Citation.]”
(Varnum v. Brien, supra, 763 N.W.2d 862, 889.)10

The majority quotes dicta in the decision in Varnum v. Brien that
recognizes that “the power of the constitution flows from the people, and the
people of Iowa retain the ultimate power to shape it over time.” (Varnum v. Brien,
supra, 763 N.W.2d 862, 876.) The majority gleans from the Iowa court’s citation
of a provision authorizing amendments to the Iowa Constitution that “even as the
Iowa high court emphatically declared in Varnum v. Brien that a statute limiting
marriage to opposite-sex couples violated a fundamental principle embodied in the
(footnote continued on next page)24
Proposition 8 represents an unprecedented instance of a majority of voters
altering the meaning of the equal protection clause by modifying the California
Constitution to require deprivation of a fundamental right on the basis of a suspect
classification. The majority’s holding is not just a defeat for same-sex couples, but
for any minority group that seeks the protection of the equal protection clause of
the California Constitution.

(footnote continued from previous page)
Constitution of that state, the court at the same time acknowledged the ultimate
power of the people to alter the content of the state Constitution through a
constitutional amendment.” (Maj. opn., ante, at pp. 117-118, fn. omitted.)
It is not remarkable that the Iowa Supreme Court recognized that the people
retain the ultimate power to shape the constitution. As I stated above, “[t]here is
no doubt that the ultimate authority over the content of the California Constitution
lies with the people.” (Ante, at p. 7.) And even if we assume that the Iowa court’s
citation of a provision authorizing amendments to the Iowa Constitution was
intended to express the view that its own decision regarding marriage equality
could be overturned by constitutional amendment, that dicta has no bearing on
whether Proposition 8 was a proper amendment to the California Constitution,
because the process for amending the Iowa Constitution differs substantially from
the process for amending the California Constitution. In Iowa, the people cannot
directly initiate a constitutional amendment, but can only vote on an amendment
after it has been approved by the Legislature, then reapproved by a new
Legislature after the next general election. (See Iowa Const., art. X, § 1.) The
Iowa Constitution can only be revised through a constitutional convention. (Id.,
§ 3.) The procedure for amending the Iowa Constitution, therefore, resembles one
of the procedures for revising the California Constitution, requiring approval both
by more than a simple majority of the Legislature (in California by a two-thirds
majority, in Iowa by a majority of two successive legislatures) and by a majority
of the people. Accordingly, the above-quoted passage from Varnum, even when
read expansively, does not support the majority’s position that a simple majority
of the electorate can amend the California Constitution to deprive a suspect class
of a fundamental right.25
This could not have been the intent of those who devised and enacted the
initiative process. In my view, the aim of Proposition 8 and all similar initiative
measures that seek to alter the California Constitution to deny a fundamental right to a
group that has historically been subject to discrimination on the basis of a suspect
classification, violates the essence of the equal protection clause of the California
Constitution and fundamentally alters its scope and meaning. Such a change cannot
be accomplished through the initiative process by a simple amendment to our
Constitution enacted by a bare majority of the voters; it must be accomplished, if at
all, by a constitutional revision to modify the equal protection clause to protect some,
rather than all, similarly situated persons. I would therefore hold that Proposition 8 is
not a lawful amendment of the California Constitution.