Q & A: Law Professor Jane Schacter discusses California’s ban on gay marriage
Jane Schacter
BY ADAM GORLICK
By passing Proposition 8 on Election Day, California voters amended the state constitution to ban same-sex marriages. The move overturns a state Supreme Court decision that has allowed about 18,000 gay couples to marry since June, calling into question the status of those relationships.
A legal challenge to Proposition 8 was filed shortly after the final votes were tallied, leaving the future of gay marriage unsettled in California.
Jane Schacter, the William Nelson Cromwell Professor in Law, is a leading expert on statutory interpretation and legislative process, constitutional law, and sexual orientation and the law. In an interview with Stanford Report, Schacter discussed the immediate fallout from the proposition and the legal outlook for gay marriage.
Q: What does the passage of Proposition 8 mean for the same-sex couples that have already married?
A: That's an interesting and unsettled question. My best guess is that those people who married in the window between the California Supreme Court decision's effective date in June and Election Day will not have their marriages retroactively invalidated. Generally, retroactivity is disfavored, and the court will look for specific language in the initiative or very clear indications that it was intended to be retroactive. But, in fact, there's nothing like that in the initiative.
Q: Gay rights groups are fighting the same-sex marriage ban in court, arguing that it amounts to an illegal constitutional revision. Explain the case they are making.
A: The state constitution says the citizens of the state can "amend" the constitution through the initiative process, but they cannot "revise" the constitution. If it is a revision, there is a different route to constitutional change. Revision is a legal term of art in this context and refers to something that changes the structure or plan of government in an important way. The law is fairly sparse here, but those challenging Proposition 8 will build on a previous state Supreme Court case that struck down on this theory an initiative limiting how the state Supreme Court could interpret and apply provisions in the state constitution concerning criminal procedure.
The argument about Proposition 8 will be that the state Supreme Court—one of the organs of government—found in May that same sex couples have a fundamental right to marry, and that denying this right to marry should be subjected to what's called strict scrutiny. Strict scrutiny means that the court will conduct a very close review of anything that treats a traditionally disadvantaged group of citizens differently, and will require extraordinary justification to support doing so. And the court only mandates strict scrutiny where it finds that a traditionally disadvantaged group cannot get a fair shake in the political process.
The claim here is that Proposition 8 prevents the court from reviewing a claim by same-sex couples that they're being denied their fundamental constitutional rights in the way that the court has said that claim should be reviewed. Proposition 8 did not address or eliminate strict scrutiny, yet its effect is to prevent the court from applying the state constitution as it believes it must be applied. The argument is that by thus handcuffing the court on a matter of constitutional interpretation of fundamental rights, Proposition 8 changes the function of an important governmental institution and constitutes a "revision."
As I said, the law on this question is sparse. There are a few cases that go different ways, so the outcome is uncertain. But I do think this challenge raises fundamental questions about the role of the judiciary in a constitutional democracy, and I think the state Supreme Court will take a close look at it.
Q: Does the passage of Proposition 8 have any bearing on domestic partnership laws?
A: California's domestic partnership statute grants and continues to grant most of the tangible rights—and certainly the most significant tangible rights—that the state can confer on couples. Proposition 8 does not affect domestic partnerships. But they are not called marriage and not recognized as a marriage. That's what the Supreme Court decision was all about.
Q: Do you expect the California case will head to the federal courts?
A: There are federal constitutional claims that could be made here. But I think the judgment by those arguing for marriage equality has been that federal constitutional law at this point is not favorable on these issues and it is not strategically wise to go to the federal courts and therefore to the U.S. Supreme Court. That's why this is being fought on a state-by-state basis.
Q: There's a lot of discussion about whether gay marriage is a civil rights issue. Is it?
A: It's a civil rights issue to the extent that it's a fundamental question about equality. In most states, we have two sets of rules: One set of citizens is entitled to marry the person of their choice, and the other set is not entitled to do so. That's a state-recognized, state-enforced, clear and unambiguous kind of inequality. But it's worth noting that calling gay marriage a civil rights issue is provocative to some people who bristle at what they take as a comparison between the gay rights struggle and the traditional civil rights struggle for African Americans. Of course those two things are not identical. Of course they have different social histories and play themselves out differently. But I think there is a commonality whenever the government is saying there are different sets of rules for different groups of people. And that's what makes it a civil rights issue.
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