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Judicial Review of Marriage Ballot Initiatives

The recent California Supreme Court recognizing a state constitutional right to gay marriage prompts my friend and UCLA law colleague Eugene Volokh to ponder the following question:

Let’s say that the California Supreme Court doesn’t stay its decision—and I doubt that it would find a legal justification to do so—but let’s say that the California voters reverse that decision in November, by enacting a state constitutional amendment that reads, “Only marriage between a man and a woman is valid or recognized in California.” What might happen to same-sex marriages that took place in the months before the amendment becomes effective?

1. One option is that they may remain valid, whether because the initiative is construed as not applying to existing marriages, or because the courts conclude such an interpretation is constitutionally mandated by the Contracts Clause ("No state shall ... pass any ... Law impairing the Obligation of Contracts ...."). ...

2. Another is that pre-initiative same-sex marriages will become domestic partnerships, which under California statutes give most of the rights of marriage. The proposed initiative doesn’t purport to bar such domestic partnerships, and it would make sense to treat such invalidated marriages as domestic partnerships, since this is the result that seems most likely to effectuate as much of the married couples’ intentions as possible. In a sense, this would be similar to what courts do when they invalidate legislation on constitutional grounds, including in the same-sex marriage case itself: Since the legislation can’t be literally applied, they tend to try to find the solution that the legislature would likely have preferred had it anticipated the court decision. ...

3. A third option is that they will be eliminated altogether, and that married couples will remain domestic partners only if they had entered both into a marriage and into a domestic partnership (on a belt-and-suspenders theory). I wonder, though, whether existing California marriage and domestic partnership law would allow this. My sense is that it should be interpreted to allow this (since this is hardly the same as marrying one person but then becoming domestic partner with another, which is not allowed), but I’m not positive.

4. Finally, it’s possible that the legislature will step in, either right after the enactment of the initiative or even before it, specifically providing that any invalidated same-sex marriage will become a domestic partnership. I think that would be good, because it would minimize disruption and best effectuate people’s preferences, and I see no reason why it would be unconstitutional. But I’m not sure that it’s going to happen.

When I read Eugene’s post, I was prompted to ask why there isn’t a fifth option; namely, why couldn’t the California Supreme Court simply hold that the ballot initiative is unconstitutional under the same state constitutional provisions on which the court relied to hold the current state marriage laws unconstitutional?

A little research kicked up what seems to be the leading law review article on the subject, written by our late colleague Julian Eule, Judicial Review of Direct Democracy, 99 Yale L.J. 1503 (1990), in which Eule opined that:

Naturally, the fact that the voters enact a constitutional amendment rather than a statute effectively precludes the possibility of substantive judicial review under the state constitution. See Answer of the Justices, 377 N.E.2d 915, 916 n.2 (Mass. 1978) (“[I]t is difficult to comprehend how [a] . . . constitutional amendment can be ‘unconstitutional’ under [the state] Constitution.”). Constitutional initiatives may, however, be challenged under the state constitution as procedurally defective or beyond the scope or subject matter of permissible voter amendments. ... Where a challenge is mounted under the Federal Constitution no consequences ought to flow from the nature of what has been enacted. The supremacy clause subjects state constitutions and statutes alike to the constraints of the United States Constitution. See Pruneyard Shopping Center v. Robins, 447 U.S. 74, 79 (1980) (state constitutional provision is “statute” within the meaning of Supreme Court’s jurisdiction to review constitutionality of state “statute”); L. TRIBE, AMERICAN CONSTITUTIONAL LAW 647 n.27 (2d ed. 1988) (“The Supreme Court has never found it significant [under bill of attainder clause] that the challenged provision was part of the state’s constitution rather than a simple enactment of its legislature.”).

Id. at 1511 n.28.

In its opinion, the California Supreme Court majority (at 48 n.28) noted that plaintiffs did not raise any federal claims. Although the Court did not adjudicate any federal constitutonal claims, the majority opinion cites lots of federal opinions. Hence, even under Eule’s approach to judicial review of initiatives, if the ballot initiative to which Eugene refers were to pass, the same plaintiffs that sued here presumably could sue again, this time seeking judicial review of the constitutional amendment effected by the initiative under the relevant federal constitutional provisions.

Moreover, I wonder whether Eule was correct on this point. (I recognize that in posing that question I’m a mere layman questioning one of the—if not the—leading experts ever to address the point.)

Suppose, for example, that the California electorate passed a ballot initiative amending the state constitution to ban interracial marriages. In light of Loving v. Virginia, of course, such an initiative would be unconstitutional under the United State Constitution. Why should the result be any different under the state equal protection and due process clauses? Granted, a rational plaintiff would sue under both the federal and state constitutions, and a reviewing state court likely would duck the state issue and decide the case on the basis of federal law, but suppose the plaintiffs sued solely under the state constitution. Faced with the necessity of holding that a ban interracial marriages was now a valid part of state constitutional law, might not the state court blink and hold that constitutional amendments effected by ballot initiative can be struck down where they violate fundamental rights? In other words, that equal protection and due process trump the initiative process?