Supreme Court of California Justia
Citation 46 Cal.4th 364

Strauss v. Horton

Filed 5/26/09



IN THE SUPREME COURT OF CALIFORNIA



KAREN L. STRAUSS et al.,

Petitioners,

v.

MARK B. HORTON, as State Registrar of Vital Statistics, etc., et al., ) S168047
Respondents;

DENNIS HOLLINGSWORTH et al.,

Interveners.

———————————————————————————— )
ROBIN TYLER et al.,

Petitioners,

v.

THE STATE OF CALIFORNIA et al.,

) S168066

Respondents;

DENNIS HOLLINGSWORTH et al.,

Interveners.

———————————————————————————— )
CITY AND COUNTY OF SAN FRANCISCO et al.,

Petitioners,

v.

MARK B. HORTON, as State Registrar of Vital Statistics, etc., et al., ) S168078
Respondents;

DENNIS HOLLINGSWORTH et al.,

Interveners.

————————————————————————————



For the third time in recent years, this court is called upon to address a

question under California law relating to marriage and same-sex couples.

In Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055

(Lockyer), we were faced with the question whether public officials of the City

and County of San Francisco acted lawfully by issuing marriage licenses to same-

1


sex couples in the absence of a judicial determination that the California statutes

limiting marriage to a union between a man and a woman were unconstitutional.

We concluded in Lockyer that the public officials had acted unlawfully in issuing

licenses in the absence of such a judicial determination, but emphasized in our

opinion that the substantive question of the constitutional validity of the marriage

statutes was not before our court in that proceeding.

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

Cases), we confronted the substantive constitutional question that had not been

addressed in Lockyer — namely, the constitutional validity, under the then-

controlling provisions of the California Constitution, of the California marriage

statutes limiting marriage to a union between a man and a woman. A majority of

this court concluded in the Marriage Cases that same-sex couples, as well as

opposite-sex couples, enjoy the protection of the constitutional right to marry

embodied in the privacy and due process provisions of the California Constitution,

and that by granting access to the designation of “marriage” to opposite-sex

couples and denying such access to same-sex couples, the existing California

marriage statutes impinged upon the privacy and due process rights of same-sex

couples and violated those couples’ right to the equal protection of the laws

guaranteed by the California Constitution.

Proposition 8, an initiative measure approved by a majority of voters at the

November 4, 2008 election, added a new section — section 7.5 — to article I of

the California Constitution, providing: “Only marriage between a man and a

woman is valid or recognized in California.” The measure took effect on

November 5, 2008. 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

2

the estimated 18,000 marriages of same-sex couples that were performed before

that initiative measure was adopted.

In a sense, this trilogy of cases illustrates the variety of limitations that our

constitutional system imposes upon each branch of government — the executive,

the legislative, and the judicial.

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, supra, 43 Cal.4th at page 780, 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.

Second, it also is necessary to understand that the legal issues before us in

this case are entirely distinct from those that were presented in either Lockyer or

the Marriage Cases. Unlike the issues that were before us in those cases, the

issues facing us here do not concern a public official’s authority (or lack of

authority) to refuse to comply with his or her ministerial duty to enforce a statute

on the basis of the official’s personal view that the statute is unconstitutional, or

the validity (or invalidity) of a statutory provision limiting marriage to a union

between a man and a woman under state constitutional provisions that do not

expressly permit or prescribe such a limitation. Instead, the principal issue before

us concerns the scope of the right of the people, under the provisions of the

California Constitution, to change or alter the state Constitution itself through the

3

initiative process so as to incorporate such a limitation as an explicit section of the

state Constitution.

In considering this question, it is essential to keep in mind that the

provisions of the California Constitution governing the procedures by which that

Constitution may be amended are very different from the more familiar provisions

of the United States Constitution relating to the means by which the federal

Constitution may be amended. The federal Constitution provides that an

amendment to that Constitution may be proposed either by two-thirds of both

houses of Congress or by a convention called on the application of two-thirds of

the state legislatures, and requires, in either instance, that any proposed

amendment be ratified by the legislatures of (or by conventions held in) three-

fourths of the states. (U.S. Const., art. V.) In contrast, the California Constitution

provides that an amendment to that Constitution may be proposed either by two-

thirds of the membership of each house of the Legislature (Cal. Const., art. XVIII,

§ 1) or by an initiative petition signed by voters numbering at least 8 percent of the

total votes cast for all candidates for Governor in the last gubernatorial election

(Cal. Const., art. II, § 8, subd. (b); id., art. XVIII, § 3), and further specifies that,

once an amendment is proposed by either means, the amendment becomes part of

the state Constitution if it is approved by a simple majority of the voters who cast

votes on the measure at a statewide election. (Id., art. XVIII, § 4.)

As is evident from the foregoing description, the process for amending our

state Constitution is considerably less arduous and restrictive than the amendment

process embodied in the federal Constitution, a difference dramatically

demonstrated by the circumstance that only 27 amendments to the United States

Constitution have been adopted since the federal Constitution was ratified in 1788,

whereas more than 500 amendments to the California Constitution have been

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adopted since ratification of California’s current Constitution in 1879. (See

Council of State Governments, The Book of the States (2008 ed.) p. 10.)

At the same time, as numerous decisions of this court have explained,

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. (See, e.g., McFadden v. Jordan (1948) 32

Cal.2d 330; Amador Valley Joint Union High Sch. Dist. v. State Bd. of

Equalization (1978) 22 Cal.3d 208; Raven v. Deukmejian (1990) 52 Cal.3d 336.)

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.

As we discuss at length below, in determining whether Proposition 8

constitutes a constitutional amendment or, instead, a constitutional revision, we by

no means write on a clean slate. Although the issue arises in this case in the

context of an initiative measure, the distinction drawn in the California

Constitution between constitutional amendments and constitutional revisions long

predates the adoption in 1911 of the initiative process as part of the California

Constitution. The origin and history in the pre-initiative era of this distinction

between an amendment and a revision shed considerable light upon the

contemplated scope of the two categories. As we shall see, our state’s original

1849 California Constitution provided that the Legislature could propose

constitutional amendments, but that a constitutional revision could be proposed

only by means of a constitutional convention, the method used in 1849 to draft the

initial constitution in anticipation of California’s statehood the following year.

Thus, as originally adopted, the constitutional amendment/revision dichotomy in

California — which mirrored the framework set forth in many other state

5

constitutions of the same vintage — indicates that the category of constitutional

revision referred to the kind of wholesale or fundamental alteration of the

constitutional structure that appropriately could be undertaken only by a

constitutional convention, in contrast to the category of constitutional amendment,

which included any and all of the more discrete changes to the Constitution that

thereafter might be proposed. (As we note later, it was not until the state

Constitution was changed in 1962 — through a constitutional amendment — that

the Legislature obtained the authority to propose revisions to all or part of the

Constitution.)

Furthermore, in addition to the historical background of the

amendment/revision language that appears in the California Constitution itself,

over the past three decades numerous decisions of this court have considered

whether a variety of proposed changes to the California Constitution represented

constitutional amendments or instead constitutional revisions. Those decisions

establish both the analytical framework and the legal standard that govern our

decision in this case, and further apply the governing standard to a wide array of

measures that added new provisions and substantially altered existing provisions

of the state Constitution. Those decisions explain that in resolving the

amendment/revision question, a court carefully must assess (1) the meaning and

scope of the constitutional change at issue, and (2) the effect — both quantitative

and qualitative — that the constitutional change will have on the basic

governmental plan or framework embodied in the preexisting provisions of the

California Constitution.

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, supra, 43

Cal.4th 757 (which preceded the adoption of Proposition 8), properly must be

6

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” (Marriage Cases, supra, 43

Cal.4th at p. 829). 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.

By clarifying this essential point, we by no means diminish or minimize the

significance that the official designation of “marriage” holds for both the

proponents and opponents of Proposition 8; indeed, the importance of the marriage

designation was a vital factor in the majority opinion’s ultimate holding in the

Marriage Cases, supra, 43 Cal.4th 757, 845-846, 855. Nonetheless, it is crucial

that we accurately identify the actual effect of Proposition 8 on same-sex couples’

state constitutional rights, as those rights existed prior to adoption of the

proposition, in order to be able to assess properly the constitutional challenges to

the proposition advanced in the present proceeding. We emphasize only that

among the various constitutional protections recognized in the Marriage Cases as

7

available to same-sex couples, it is only the designation of marriage — albeit

significant — that has been removed by this initiative measure.

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. As a

quantitative matter, petitioners concede that Proposition 8 — which adds but a

single, simple section to the Constitution — does not constitute a revision. As a

qualitative matter, the act of limiting access to the designation of marriage to

opposite-sex couples does not have a substantial or, indeed, even a minimal effect

on the governmental plan or framework of California that existed prior to the

amendment. Contrary to petitioners’ claim in this regard, the measure does not

transform or undermine the judicial function; this court will continue to exercise

its traditional responsibility to faithfully enforce all of the provisions of the

California Constitution, which now include the new section added through the

voters’ approval of Proposition 8. Furthermore, the judiciary’s authority in

applying the state Constitution always has been limited by the content of the

provisions set forth in our Constitution, and that limitation remains unchanged.

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

8

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.

We agree with petitioners that the state constitutional right to equal

protection of the laws unquestionably represents a long-standing and fundamental

constitutional principle (a constitutional principle that, as we already have

explained, has not generally been repealed or eliminated by Proposition 8). There

are many other constitutional rights that have been amended in the past through

the initiative process, however, that also are embodied in the state Constitution’s

Declaration of Rights and reflect equally long-standing and fundamental

constitutional principles whose purpose is to protect often unpopular individuals

and groups from overzealous or abusive treatment that at times may be condoned

by a transient majority. Neither the language of the relevant constitutional

provisions, nor our past cases, support the proposition that any of these rights is

totally exempt from modification by a constitutional amendment adopted by a

majority of the voters through the initiative process.

The constitutions of a number of other states contain express provisions

precluding the use of the initiative power to amend portions or specified

provisions of those states’ constitutions (see, e.g., Mass. Const., amend. art.

XLVIII, pt. II, § 2 [“No proposition inconsistent with any one of the following

rights of the individual, as at present declared in the declaration of rights, shall be

the subject of an initiative . . . petition: [listing a number of rights, including the

rights to just compensation, jury trial, and protection from unreasonable search,

and the freedoms of speech, assembly, and of the press]]; Miss. Const., art. 15,

9

§ 273, subd. (5) [“The initiative process shall not be used: [¶] (a) For the proposal,

modification or repeal of any portion of the Bill of Rights of this Constitution”].)

In contrast, the California Constitution contains no comparable limitation. In the

absence of such an express restriction on the initiative power, and in light of past

California authorities, we conclude that the California Constitution cannot be

interpreted as restricting the scope of the people’s right to amend their

Constitution in the manner proposed by petitioners.

Petitioners also claim that Proposition 8 violates the separation of powers

doctrine embodied in the California Constitution. We conclude this claim

similarly lacks merit. Contrary to petitioners’ assertion, Proposition 8 does not

“readjudicate” the issue that was litigated and resolved in the Marriage Cases,

supra, 43 Cal.4th 757. 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.

The Attorney General, in his briefing before this court, has advanced an

alternative theory — not raised by petitioners in their initial petitions — under

which he claims that even if Proposition 8 constitutes a constitutional amendment

rather than a constitutional revision, that initiative measure nonetheless should be

found invalid under the California Constitution on the ground that the “inalienable

rights” embodied in article I, section 1 of that Constitution are not subject to

“abrogation” by constitutional amendment without a compelling state interest.

The Attorney General’s contention is flawed, however, in part because, like

10

petitioners’ claims, it rests inaccurately upon an overstatement of the effect of

Proposition 8 on both the fundamental constitutional right of privacy guaranteed

by article I, section 1, and on the due process and equal protection guarantees of

article I, section 7. As explained below, Proposition 8 does not abrogate any of

these state constitutional rights, but instead carves out a narrow exception

applicable only to access to the designation of the term “marriage,” but not to any

other of “the core set of basic substantive legal rights and attributes traditionally

associated with marriage . . .” (Marriage Cases, supra, 43 Cal.4th at p. 781), such

as the right to establish an officially recognized and protected family relationship

with the person of one’s choice and to raise children within that family.

In addition, 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.

11



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.1 But it


1

In contrast to the process by which the California Constitution may be

amended, in both Connecticut and Iowa — two states in which supreme courts
recently have held that a statute limiting marriage to opposite-sex couples violates
the provisions of their respective state constitution (see Kerrigan v. Commissioner
of Public Health
(Conn. 2008) 957 A.2d 407; Varnum v. Brien (Iowa 2009) 763
N.W.2d 862) — the state constitution may not be amended through the initiative
process, and in each state an amendment proposed by a majority of the legislators
in each house must be approved in two successive legislative sessions before it can
be submitted to the voters for ratification at the next general election. (See Conn.
Const., amend. art. VI; Iowa Const., art. X, § 1.) (In Connecticut, an amendment
approved by three-quarters of the legislators in each house may be submitted
directly to the voters for ratification at the next general election (Conn. Const.,
amend. art. VI).)


In Massachusetts — the other state in which a statute limiting marriage to

opposite-sex couples has been found unconstitutional under the state constitution
(see Goodridge v. Department of Public Health (Mass. 2003) 798 N.E.2d 941) —
the state constitution may in some circumstances be amended through the
initiative process, but in that state, after an initiative petition has been signed by
the requisite number of electors, the proposed constitutional amendment must be
approved by one-fourth of the state legislators in two successive legislative
sessions before it can be placed on the ballot. (See, post, at p. 116, fn. 40.)


In Vermont, where the state legislature recently amended that state’s

marriage statute (over a gubernatorial veto) to permit same-sex couples to marry
(Vt. Act No. 3, S. 115 (2009-2010 Legis. Sess.) eff. Sept. 1, 2009), the state
constitution may not be amended through the initiative process, and an amendment
proposed by the legislature must be approved in two successive legislative
sessions before it can be submitted to the voters for ratification. (Vt. Const., ch. II,
§ 72.)


In Maine, where the state legislature also recently amended that state’s

(footnote continued on next page)

12

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 (see, post, at pp. 46-55), or as limited in the present-day constitutions of

some of our sister states (see, post, at pp. 105-107) — 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.


(footnote continued from previous page)

marriage statute to permit same-sex couples to marry (Me. L.D. No. 1020, S.P.
No. 384 (124th Leg., 1st Sess.) enacted May 6, 2009), the state constitution
similarly may not be amended through the initiative process. In that state, an
amendment to the state constitution may be proposed by a two-thirds vote of both
houses of the legislature, and becomes effective if approved by a majority of
voters at the next biennial statewide election. (Me. Const., art. X, § 4.)


13

I

To place the constitutional change effected by Proposition 8 in context, we

review the relevant historical circumstances that preceded the drafting, circulation,

and adoption of this initiative measure.

We begin with a condensed summary of the relevant history of California’s

marriage statutes, a history described in greater detail by the majority opinion in

the Marriage Cases, supra, 43 Cal.4th 757. As explained in that opinion, “[f]rom

the beginning of California statehood, the legal institution of civil marriage has

been understood to refer to a relationship between a man and a woman.” (Id. at

p. 792, fn. omitted.) In the mid-1970’s, however, at least in part as a consequence

of changes in the language of the California marriage statutes made in response to

an unrelated subject (id. at p. 794), same-sex couples applied for marriage licenses

from county clerks in a number of California counties. At that point in time all of

the county clerks denied the applications, “but in order to eliminate any

uncertainty as to whether the then existing marriage statutes authorized marriage

between two persons of the same sex, legislation was introduced in 1977 at the

request of the County Clerks’ Association of California to amend [the relevant

statutory provisions] to clarify that the applicable California statutes authorized

marriage only between a man and a woman.” (Id. at p. 795.) The 1977 bill was

enacted into law, and as a result the relevant statutory provision — now embodied

in Family Code section 300 — declared in relevant part that “[m]arriage is a

personal relation arising out of a civil contract between a man and a woman . . . .”

The intent of this statute clearly was to limit marriages that lawfully could be

performed in California to marriages of opposite-sex couples. (43 Cal.4th at

p. 795.)

This marriage statute, as amended in 1977, remained in effect throughout

the 1980’s, 1990’s, and 2000’s, and continued to limit marriages that lawfully

14

could be performed in California to marriages of opposite-sex couples. In the

mid- and late-1990’s and early 2000’s, however, in response to a 1993 decision of

the Hawaii Supreme Court that raised the possibility that the courts of that state

might conclude that the Hawaii statute limiting marriage to opposite-sex couples

violated the provisions of the Hawaii Constitution and that same-sex couples

lawfully could marry in Hawaii (see Baehr v. Lewin (1993) 74 Haw. 530 [852

P.2d 44]), the United States Congress and many states adopted so-called Defense

of Marriage Acts generally setting forth, in varying terms, the particular

jurisdiction’s policies of (1) limiting marriage to opposite-sex couples, and

(2) recognizing only those marriages, entered into in another jurisdiction, that

involved opposite-sex couples.

In California, supporters of this “defense of marriage” movement drafted

and circulated an initiative petition that ultimately appeared on the March 7, 2000

primary election ballot as Proposition 22. Unlike comparable measures in some

other states that took the form of state constitutional amendments, Proposition 22

proposed the adoption in California of a new statutory provision, Family Code

section 308.5.2 That statute provided, in full: “Only marriage between a man and

a woman is valid or recognized in California.” At the March 7, 2000 election, the

voters of California approved Proposition 22, and section 308.5 became part of the

Family Code.


2

Under article II, section 8, subdivision (b) of the California Constitution, an

initiative petition that proposes the adoption of a statutory provision must be
signed by electors “equal in number to [at least] 5 percent . . . of the votes [cast]
for all candidates for Governor at the last gubernatorial election,” whereas an
initiative petition that proposes the adoption of a constitutional amendment must
be signed by a number of voters equal to at least 8 percent of the votes cast for all
candidates for Governor at the last gubernatorial election.

15



Notwithstanding the provisions of Family Code sections 300 and 308.5, in

February 2004 public officials of the City and County of San Francisco, acting on

their personal opinion that the provisions of the California marriage statutes

limiting marriage to opposite-sex couples were unconstitutional — but in the

absence of any judicial determination of that legal question — began issuing

marriage licenses to, and solemnizing marriages of, numerous same-sex couples.

Shortly thereafter, the Attorney General and a number of taxpayers filed original

proceedings in this court, maintaining that the actions of the city officials were

unlawful and requesting our immediate intervention. (Lockyer v. City and County

of San Francisco, S122923, and Lewis v. Alfaro, S122865, consolidated and

decided in Lockyer, supra, 33 Cal.4th 1055.) On March 11, 2004, we issued an

order to show cause in those proceedings, and, pending our determination of the

matters, directed the local officials to enforce the existing marriage statutes and to

refrain from issuing marriage licenses to same-sex couples. At the same time, we

indicated that our order did not preclude the filing of a separate action in superior

court raising, for judicial determination, a direct challenge to the constitutionality

of California’s marriage statutes.

Shortly thereafter, several new actions were filed in superior court

challenging the constitutionality of the California marriage statutes. Subsequently

those actions, along with several others, were combined into a single coordination

proceeding entitled In re Marriage Cases (JCCP No. 4365) and assigned to a

superior court judge.

In August 2004, while the Marriage Cases coordination proceeding was

pending in superior court, our court rendered its decision in Lockyer, supra, 33

Cal.4th 1055. We concluded that the local officials had exceeded their authority

in issuing marriage licenses to same-sex couples in the absence of a judicial

determination that the statutory provisions limiting marriage to opposite-sex

16

couples were unconstitutional, and further held that the approximately 4,000

marriages of same-sex couples performed in San Francisco prior to our March 11,

2004 order were void and of no legal effect. At the same time, our opinion in

Lockyer emphasized that the substantive question of the constitutionality of

California’s statutes limiting marriage to opposite-sex couples was not before this

court in that case, and that we were expressing no view on that issue.

After we filed our decision in Lockyer, supra, 33 Cal.4th 1055, the superior

court in the Marriage Cases coordination proceeding obtained briefing and

conducted a hearing on the substantive question of the validity, under the state

Constitution, of California’s statutes limiting marriage to opposite-sex couples.

After considering the parties’ positions, the superior court concluded that the

California marriage statutes, in limiting marriage to opposite-sex couples and

denying access to marriage to same-sex couples, violated the equal protection

clause of the California Constitution. The superior court entered judgment in

favor of the parties challenging the constitutionality of the marriage statutes.

On appeal, the Court of Appeal in a split decision reversed the superior

court’s ruling, concluding that the superior court had erred in finding the marriage

statutes unconstitutional. One appellate justice dissented from that holding.

On petition of the parties in the Marriage Cases, we granted review,

subsequently receiving extensive briefing by the parties and by a large number of

amici curiae.

During the period in which the Marriage Cases proceeding was pending in

this court but before we issued our decision, individuals circulated for signature an

initiative petition proposing the adoption of the constitutional initiative measure at

issue in the present case — that is, the initiative measure ultimately designated as

17

Proposition 8.3 As set forth in the initiative petition, the measure proposed to add

one new section — section 7.5 — to article I of the California Constitution. The

proposed new article I, section 7.5 read in full: “Only marriage between a man

and a woman is valid or recognized in California.” As we have seen, these are the

identical 14 words that were embodied in Proposition 22 and adopted as Family

Code section 308.5 at the March 2000 election. The difference between the

measure proposed by Proposition 8 and the one contained in Proposition 22 is that

Proposition 8 proposed to add this language as a provision of the California

Constitution, whereas by Proposition 22 this language had been adopted as a

statutory provision. (A California statute, of course, is invalid if it conflicts with

the governing provisions of the California Constitution.)

On May 15, 2008, prior to the date the Secretary of State certified that

Proposition 8 had obtained sufficient valid signatures to qualify for the

November 4, 2008 election ballot, this court issued its decision in the Marriage

Cases, supra, 43 Cal.4th 757. We shall discuss the majority opinion in the

Marriage Cases in greater detail below in analyzing the scope and effect of

Proposition 8 (see, post, at pp. 24-43), but at this juncture it is sufficient simply to

point out that the majority concluded that (1) the constitutional “right to marry,” as

embodied in the privacy and due process provisions of the California Constitution,

is distinct from, and encompasses a much broader set of core elements than, the

right to have one’s official family relationship designated as “marriage,” (2) same-

sex couples, as well as opposite-sex couples, enjoy the full protection of, and all of


3

Although the initiative measure was not designated Proposition 8 until after

the Secretary of State certified that the measure had qualified for the ballot, for
convenience we shall describe it as Proposition 8 even when referring to its
existence prior to the time it was so designated.

18

the rights encompassed by, the state constitutional rights of privacy and due

process, (3) statutes that treat persons differently on the basis of their sexual

orientation, like statutes that accord differential treatment on the basis of race or

gender, are constitutionally suspect and subject to “strict scrutiny” under the

California equal protection clause, and (4) by affording access to the designation

of “marriage” to opposite-sex couples but denying that access to same-sex

couples, the California statutes limiting marriage to the union of a man and a

woman impinged upon same-sex couples’ state constitutional rights of privacy and

due process and violated such couples’ right to the equal protection of the laws as

guaranteed by the state Constitution. The majority opinion further concluded that

to remedy these constitutional violations, the California marriage statutes should

be interpreted to grant both opposite-sex and same-sex couples access to the

designation of marriage and to the rights inherent in that institution.

Disagreeing with these conclusions, Justice Baxter, in a concurring and

dissenting opinion joined by Justice Chin, argued that the acceptance of same-sex

marriage should be determined through the political process, and not by this court.

By relegating to itself the authority to alter and recast the traditional definition of

marriage, these justices urged, the majority had violated the separation of powers

among the three branches of government.

In specific response to the majority’s analysis, Justices Baxter and Chin

asserted that (1) it was unnecessary to decide whether same-sex couples had a

fundamental state constitutional right to form legal unions with the substantive

rights and benefits of marriage, because the Domestic Partner Rights and

Responsibilities Act of 2003 (Domestic Partner Act), adopted by the Legislature,

already grants to those couples all of these substantive rights the state can provide;

(2) because marriage universally has been defined and understood as a formal

relationship between a man and a woman, the California Constitution could not be

19

construed to afford same-sex couples a fundamental “right to marry” that requires

official use of the name “marriage” for same-sex legal unions; and (3) use of the

common term “marriage” for same-sex and opposite-sex legal unions was not

required by the state Constitution’s equal protection clause.

On the last point, Justices Baxter and Chin reasoned that (1) same-sex and

opposite-sex couples are not similarly situated in the context of statutes retaining

the traditional definition of marriage; (2) sexual orientation is not a “suspect class”

for state constitutional purposes; (3) state constitutional challenges to statutory

distinctions on the basis of sexual orientation thus should be decided under the

“rational basis” or “rational relationship” standard, not the “strict scrutiny”

standard adopted by the majority; and (4) rational grounds existed for the decision

of the Legislature and the people to retain the traditional definition of marriage as

between a man and a woman.

In a separate concurring and dissenting opinion, Justice Corrigan wrote that

the equal protection clause of the California Constitution affords same-sex couples

a right to form legal unions with all the substantive benefits and responsibilities of

marriage — a right fully implemented by the Domestic Partner Act. She

concluded that equal protection principles do not require same-sex legal unions to

be officially identified by the name “marriage,” even though — in her view —

Californians should allow them to be so designated. Like Justices Baxter and

Chin, Justice Corrigan reasoned that, in light of the age-old understanding of

marriage as a relationship limited to that between a man and a woman, same-sex

and opposite-sex couples are not similarly situated for the purpose of recognizing

the availability of the label “marriage” to same-sex legal unions. Hence, she

concluded, an equal protection challenge to such a statutory distinction must be

rejected at the threshold. Justice Corrigan joined Justices Baxter and Chin in

arguing that this court lacked authority to alter and recast the traditional definition

20

of marriage, and that such a profound social change instead should be

accomplished through the political process.

After this court issued its decision in the Marriage Cases, several parties

filed a petition for rehearing, requesting that this court either grant rehearing or

modify the opinion “to stay the effectiveness of its decision until after the

Secretary of State compiles the result of the November 4, 2008, election.” The

rehearing petition noted that the proponents of Proposition 8 already had

submitted the voter-signed initiative petition to county election officials for review

and verification of the submitted signatures, and that the verification process was

then underway. The rehearing petition maintained that “[i]f the voters approve the

Marriage Initiative by a majority vote at the November 4, 2008 election, the

language of the Marriage Initiative . . . will become part of the California

Constitution” and would alter that Constitution “in a manner that will obviate the

basis for the writ ordered in [the] Court’s decision.” On June 2, 2008, the

Secretary of State certified that Proposition 8 had obtained a sufficient number of

valid signatures to appear on the November 4, 2008 general election ballot. On

June 4, 2008, by majority vote, this court denied the petition for rehearing in the

Marriage Cases; Justices Baxter, Chin, and Corrigan voted to grant rehearing.

Our order indicated that the decision filed on May 15, 2008, would become final at

5:00 p.m. on June 16, 2008. The request to stay the effect of our decision was

denied unanimously.

On June 20, 2008, shortly after the decision in the Marriage Cases became

final, a petition was filed in this court, seeking the issuance of an original writ of

mandate directing the Secretary of State not to include Proposition 8 on the

election ballot to be voted upon at the November 4, 2008 election. (Bennett v.

Bowen, S164520.) The petition contended, among other claims, that Proposition 8

embodied a constitutional revision rather than a constitutional amendment and for

21

that reason could not lawfully be proposed by the initiative process. On July 16,

2008, this court summarily denied the petition.

Accordingly, Proposition 8 remained on the November 4, 2008 election

ballot. The Attorney General prepared a title and summary of the proposition; the

Legislative Analyst prepared an analysis of the measure; ballot arguments in favor

of and against the proposition were submitted; and a ballot pamphlet containing

these materials was compiled by the Secretary of State and was sent to all voters

prior to the November 4, 2008 election. At that election, Proposition 8 was

approved by a majority (52.3 percent) of the voters casting votes on the

proposition. (See Cal. Sect. of State, Votes for and Against November 4, 2008

State Ballot Measures <http://www.ss.ca.gov> [as of May 26, 2009].) Pursuant to

article XVIII, section 4 of the California Constitution, the measure took effect on

November 5, 2008.

On November 5, 2008, the day following the election, three separate

petitions for an original writ of mandate were filed in this court challenging the

validity of Proposition 8. In Strauss v. Horton (S168047), petitioners — a number

of same-sex couples who seek to marry notwithstanding the provisions of

Proposition 8, along with Equality California (an organization whose members

include numerous similarly situated same-sex couples throughout California) —

seek a writ of mandate directing the relevant state officials to refrain from

performing any act enforcing Proposition 8 and from instructing any other person

or entity to enforce that measure, on the ground that Proposition 8 constitutes an

invalid revision of the California Constitution. In Tyler v. State of California

(S168066), petitioners — one same-sex couple who married in California prior to

the adoption of Proposition 8 and one same-sex couple who want to marry

notwithstanding Proposition 8 — seek similar relief, asserting both that

Proposition 8 constitutes an impermissible constitutional revision and that

22

Proposition 8 violates the separation of powers doctrine. In City and County of

San Francisco v. Horton (S168078), petitioners — numerous California municipal

entities and several same-sex couples who married in California prior to the

adoption of Proposition 8 — also seek a writ of mandate directing state officials to

refrain from implementing, enforcing, or applying Proposition 8, on the ground

that this measure constitutes a constitutional revision, and further seek an order, in

the event the court concludes that Proposition 8 is not unconstitutional, declaring

that it operates prospectively only and does not invalidate existing marriages

between same-sex couples. The petitions filed in the Strauss and Tyler cases also

requested that we stay the operation of Proposition 8 pending our determination of

these matters. On November 17, 2008, the official proponents of Proposition 8

filed a motion to intervene in all three cases.

On November 19, 2008, we issued an order to show cause in each of the

three cases, granted the official proponents’ motion to intervene, and at the same

time denied the requests to stay the operation of Proposition 8 pending our

consideration of these cases. Our order listed three issues to be briefed and

argued,4 and established an expedited briefing schedule.

The parties timely filed their briefs in this court,5 and we also have received

numerous amici curiae briefs (63 in number, representing hundreds of institutions


4

The three issues are as follows: (1) Is Proposition 8 invalid because it

constitutes a revision of, rather than an amendment to, the California Constitution?
(See Cal. Const., art. XVIII, §§ 1-4.) (2) Does Proposition 8 violate the separation
of powers doctrine under the California Constitution? (3) If Proposition 8 is not
unconstitutional, what is its effect, if any, on the marriages of same-sex couples
performed before the adoption of Proposition 8?

5

Although petitioners in each of the three cases before us have filed separate

briefs and have framed their arguments in slightly differing terms, the gist of the
claims raised by all petitioners is similar. For convenience, when we refer in this

(footnote continued on next page)

23

and individuals) on behalf of petitioners and of respondents.6 The cases were

argued before this court on March 5, 2009, and after oral argument we filed an

order consolidating the three cases for decision.

II

As already noted, the constitutional challenges to Proposition 8 that have

been advanced in this proceeding require us to evaluate the changes in the

California Constitution actually effected by the addition of the constitutional

provision embodied in Proposition 8. In order to accurately identify those

changes, it is necessary to review at some length the majority opinion in the

Marriage Cases, supra, 43 Cal.4th 757. As we shall see, that opinion resolved a


(footnote continued from previous page)

opinion to a contention or argument raised by “petitioners,” we are referring to a
claim raised in one or more of the briefs filed by petitioners.

6

In their opposition brief filed in the City and County of San Francisco

action (S168078) (in which the City and County of San Francisco and numerous
other public entities appear as petitioners), interveners raise a threshold issue,
challenging the standing of these public entities to bring such an action. In their
reply brief, petitioner public entities vigorously contest interveners’ lack-of-
standing claim, relying, among other grounds, on a number of prior cases in which
public entities have been permitted to challenge the constitutionality of a state law.
(See, e.g., County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th
798, 816-818; Central Delta Water Agency v. State Water Resources Control Bd.
(1993) 17 Cal.App.4th 621, 630; Selinger v. City Council (1989) 216 Cal.App.3d
259, 270-271; cf. City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79-80.)
Because the individual petitioners in both the Straus and Tyler actions, and the
individuals who are additional petitioners in the City and County of San Francisco
action, clearly have standing to maintain these actions, and because the significant
legal issues before us are not affected by the standing issue, we conclude it is not
necessary or advisable to address in this proceeding the general question of a
public entity’s standing to bring such an action. (Cf. Marriage Cases, supra, 43
Cal.4th 757, 791, fn. 9; Lockyer, supra, 33 Cal.4th 1055, 1099, fn. 27.)

24

number of distinct issues that bear directly on the meaning and scope of

Proposition 8.

A

One of the questions presented in the Marriage Cases, supra, 43 Cal.4th

757, was the proper interpretation of the language embodied in Family Code

section 308.5 — “[o]nly marriage between a man and a woman is valid or

recognized in California” — the statutory provision enacted in 2000 by the voters’

approval of Proposition 22. The petitioners in the Marriage Cases asserted that

this language was intended and should be interpreted to apply only to marriages

entered into in a jurisdiction other than California, but this court unanimously

rejected that contention, concluding that the statutory language in question

reasonably must be interpreted to apply to marriages performed in California as

well as to those performed in other jurisdictions. (43 Cal.4th at pp. 796-801.) In

light of that holding, and the background and “legislative” history of Proposition 8

contained in the ballot pamphlet materials relating to that measure, it is clear that

the section added to the California Constitution by Proposition 8 — which

contains language identical to that found in Family Code section 308.5 — applies

both to marriages performed in California and to those performed in other

jurisdictions.7

B

The main contention raised by the petitioners in the Marriage Cases, supra,

43 Cal.4th 757, was that both Family Code section 308.5 and Family Code section


7

The question whether Proposition 8 is prospective or retroactive ― that is,

whether it applies only to marriages performed after its effective date or also to
marriages performed prior to that date ― is addressed in a subsequent part of this
opinion. (Post, at pp. 128-135.)

25

300 (“[m]arriage is a personal relation arising out of a civil contract between a

man and a woman”) violated the California Constitution. The petitioners argued

that by limiting marriage to opposite-sex couples, the marriage statutes

contravened both the state constitutional right to marry, as embodied in the

privacy and due process clauses of the state Constitution (art. I, §§ 1, 7), and the

state equal protection guarantee (art. I, § 7). The majority opinion initially

addressed the state constitutional right to marry, discussing in considerable detail

the meaning and scope of this right.

Analyzing, in the Marriage Cases, supra, 43 Cal.4th 757, 812, “the nature

and substance of the interests protected by the constitutional right to marry,” the

majority opinion first expressly “put to the side . . . the question whether the

substantive rights embodied within the constitutional right to marry include the

right to have the couple’s official relationship designated by the name ‘marriage’

rather than some other term, such as ‘domestic partnership,’ ” explaining that the

latter issue would be addressed in a subsequent part of the opinion. (Ibid.)

The majority opinion then began its analysis of the state constitutional right

to marry by reviewing numerous California cases that had discussed and applied

this right. (Marriage Cases, supra, 43 Cal.4th at pp. 813-815.) The opinion

concluded, after an assessment of the significant societal and individual interests

underlying this right as reflected in those decisions (id. at pp. 815-818), that

“[b]ecause 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, . . . 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

26

Legislature chooses to establish and retain it.” (Marriage Cases, supra, 43 Cal.4th

at pp. 818-819.)

The majority opinion then went on to discuss some of the substantive

aspects of this constitutional right. “One very important aspect of the substantive

protection afforded by the California constitutional right to marry is . . . 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. [Citations.] 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 [citations], as well as to protect the core elements of the

family relationship from at least some types of improper interference by others.

[Citation.] This constitutional right also has the additional affirmative substantive

effect of providing assurance to each member of the relationship that the

government will enforce the mutual obligations between the partners (and to their

children) that are an important aspect of the commitments upon which the

relationship rests.” (Marriage Cases, supra, 43 Cal.4th at pp. 819-820, fn.

omitted.)

In summarizing this aspect of the decision, the majority opinion in the

Marriage Cases, supra, 43 Cal.4th 757, explained that “under this state’s

Constitution, the constitutionally based right to marry properly must be understood

27

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. . . . [T]he 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.” (43 Cal.4th at p. 781.)

After discussing the basic contours of the substantive elements

encompassed within the state constitutional right to marry, the majority opinion in

the Marriage Cases, supra, 43 Cal.4th 757, went on to explain that although “as

an historical matter in this state marriage always has been limited to a union

between a man and a woman” (id. at p. 820), “[t]radition alone . . . generally has

not been viewed as a sufficient justification for perpetuating, without examination,

the restriction or denial of a fundamental constitutional right.” (Id. at pp. 820-

821.) Observing that “in recent decades, there has been a fundamental and

dramatic transformation in this state’s understanding and legal treatment of gay

individuals and gay couples” resulting in a general recognition “that gay

individuals are entitled to the same legal rights and the same respect and dignity

afforded all other individuals and are protected from discrimination on the basis of

their sexual orientation” (id. at pp. 821-822), the majority concluded in the

28

Marriage Cases that “just as this court recognized in Perez [v. Sharp (1948) 32

Cal.2d 711] that it was not constitutionally permissible to continue to treat racial

or ethnic minorities as inferior [citation], and in Sail’er Inn[, Inc. v. Kirby (1971)

5 Cal.3d 1] that it was not constitutionally acceptable to continue to treat women

as less capable than and unequal to men [citation], we now similarly recognize that

an individual’s homosexual orientation is not a constitutionally legitimate basis for

withholding or restricting the individual’s legal rights.” (43 Cal.4th at pp. 822-

823.) The opinion continued: “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.” (Id. at p. 823.)

Subsequently, after discussing and rejecting numerous arguments that had

been presented as justification for limiting the constitutional right to marry to

opposite-sex couples only (Marriage Cases, supra, 43 Cal.4th at pp. 823-829), the

majority opinion reiterated in clear and emphatic terms its holding on this aspect

of the case: “[W]e 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.” (Id. at p. 829, italics added.)

C

Having concluded that same-sex couples enjoy the same rights afforded by

the state constitutional right to marry as opposite-sex couples, the majority opinion

in the Marriage Cases, supra, 43 Cal.4th 757, turned to the issue that had been

29

deferred earlier in the opinion — namely, whether the substantive rights embodied

in the constitutional right to marry include the right to have one’s family

relationship designated by the term “marriage.” The Attorney General argued that

even if the state constitutional right to marry extends to same-sex couples, the

marriage statutes did not violate the fundamental rights of same-sex couples by not

making this designation available to them, “ ‘because all of the personal and

dignitary interests that have traditionally informed the right to marry have been

given to same-sex couples through the Domestic Partner Act.’ ” (Id. at p. 830.)

The Attorney General asserted that “ ‘[t]he fundamental right to marry can no

more be the basis for same-sex couples to compel the state to denominate their

committed relationships “marriage” than it could be the basis for anyone to

prevent the state legislature from changing the name of the marital institution itself

to “civil unions.” ’ ” (Ibid.)

In responding to the Attorney General’s argument, the majority opinion

stated that “[w]e have no occasion in this case to determine whether the state

constitutional right to marry necessarily affords all couples the constitutional right

to require the state to designate their official family relationship a ‘marriage,’ ”

because “[w]hether or not the name ‘marriage,’ in the abstract, is considered a

core element of the state constitutional right to marry, one of the core elements of

this fundamental right is the right of same-sex couples to have their official family

relationship accorded the same dignity, respect, and stature as that accorded to all

other officially recognized family relationships. The current statutes — by

drawing a distinction between the name assigned to the family relationship

available to opposite-sex couples and the name assigned to the family relationship

available to same-sex couples, and by reserving the historic and highly respected

designation of marriage exclusively to opposite-sex couples while offering same-

sex couples only the new and unfamiliar designation of domestic partnership ―

30

pose a serious risk of denying the official family relationship of same-sex couples

the equal dignity and respect that is a core element of the constitutional right to

marry.” (Marriage Cases, supra, 43 Cal.4th at pp. 830-831, italics added.)

Accordingly, although the majority opinion agreed with the Attorney

General “that the provisions of the Domestic Partner Act afford same-sex couples

most of the substantive attributes to which they are constitutionally entitled under

the state constitutional right to marry” (Marriage Cases, supra, 43 Cal.4th at

p. 831), the opinion concluded its discussion of the state constitutional right to

marry by determining that “the current statutory assignment of different

designations to the official family relationship of opposite-sex couples and of

same-sex couples properly must be viewed as potentially impinging upon the state

constitutional right of same-sex couples to marry.” (Ibid.)

D

After describing the effect, upon the state constitutional right to marry, of

the California statutes’ assignment of different designations to the family

relationship of opposite-sex couples and the family relationship of same-sex

couples, the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757, turned

to the petitioners’ claim that the use of different designations denied same-sex

couples equal protection of the laws, as guaranteed by the state constitutional

equal protection clause embodied in article I, section 7. In analyzing the equal

protection claim, the opinion explained that the initial question to be resolved was

the appropriate standard of review that should be applied in evaluating the

difference in treatment accorded by the existing California statutes ― whether the

standard should be the ordinary “rational basis” standard of review that applies in

most cases or, alternatively, the “strict scrutiny” standard of review that applies to

statutory schemes that involve “suspect classifications” or that impinge upon

“fundamental rights.” (43 Cal.4th at pp. 831-833.)

31

In addressing the standard-of-review issue, the majority opinion first

rejected the petitioners’ claim that the difference in treatment between opposite-

sex and same-sex couples properly should be viewed as discrimination on the

basis of the suspect classification of sex or gender (Marriage Cases, supra, 43

Cal.4th 757, 833-838). The majority went on to conclude, however, (1) that the

California statutes in question imposed differential treatment on the basis of sexual

orientation (id. at pp. 839-840), and (2) that sexual orientation constitutes a

suspect classification for purposes of California equal protection analysis (id. at

pp. 840-843). Because the statutes accorded different treatment on the basis of the

suspect classification of sexual orientation, the opinion held that these provisions

must be evaluated under the strict scrutiny standard. (Id. at pp. 843-844.)

Furthermore, the opinion held that the strict scrutiny standard was applicable

under the California Constitution in this instance not only because the statutes

accorded different treatment on the basis of sexual orientation, but also because,

by assigning different family designations that created a significant risk the family

relationship of same-sex couples would not be afforded the same respect and

dignity as the family relationship of opposite-sex couples, the statutes impinged

upon the constitutional right of same-sex couples to marry. (43 Cal.4th at pp. 844-

847.)

Having determined that strict scrutiny was the applicable standard of

review, the majority opinion proceeded to apply the legal analysis dictated under

that standard by considering whether the distinction between the designation of the

family relationship of opposite-sex couples and that for same-sex couples served

not only a constitutionally legitimate — but also a compelling — state interest,

and, further, whether that difference in treatment not only was rationally related to

but necessary to serve that interest. (Marriage Cases, supra, 43 Cal.4th at

pp. 847-848.) After carefully reviewing the justifications for the strict scrutiny

32

standard proffered by the state and other respondents in that case, the opinion

concluded that the state interest in retaining the traditional definition of marriage

does not constitute a state interest sufficiently compelling under the strict scrutiny

standard to justify withholding that status from same-sex couples. The majority

opinion consequently held that the provisions of Family Code sections 300 and

308.5 were unconstitutional insofar as they exclude same-sex couples from the

designation of marriage. (43 Cal.4th at pp. 848-856.)

E

Finally, in determining the appropriate remedy in light of the constitutional

conclusion it reached, the majority opinion held that the language of Family Code

section 300 limiting the designation of marriage to a union “between a man and a

woman” must be stricken from the statute and the remaining statutory language

must be understood as making the designation of marriage available to both

opposite-sex and same-sex couples, and that the provisions of section 308.5 could

have no constitutionally permissible effect and could not stand. The opinion

directed that a writ of mandate issue, instructing state officials to take all steps

necessary to ensure that local officials throughout the state, in performing their

duty to enforce the marriage statutes, applied those provisions in a manner

consistent with the decision. (Marriage Cases, supra, 43 Cal.4th at pp. 856-857.)

F

Having carefully reviewed the majority opinion in the Marriage Cases,

supra, 43 Cal.4th 757, we assess the actual scope of Proposition 8 against the

background of that opinion.

1

First, as we already have noted, in light of the interpretation of the language

of Proposition 22 in the Marriage Cases, supra, 43 Cal.4th at pages 796-800, as

well as the history of Proposition 8 itself, there is no question but that article I,

33

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.

2

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, supra, 43 Cal.4th 757, 809-831. 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 (43 Cal.4th at pp. 809-810, 818-819), 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.”

(Id. at p. 781.) 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.” (Id.

at pp. 812, 830-831.) 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

34

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).

What effect does Proposition 8 have on this aspect of the state

constitutional rights of privacy and due process as set forth in the majority opinion

in the Marriage Cases, supra, 43 Cal.4th 757? 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.

The case of Bowens v. Superior Court (1991) 1 Cal.4th 36 (Bowens)

illustrates this point. In Bowens, our court considered the effect of a then-newly

adopted constitutional provision — article I, section 14.1 — that abrogated an

indicted criminal defendant’s right to a postindictment preliminary hearing, a right

that this court, in Hawkins v. Superior Court (1978) 22 Cal.3d 584, 587-593, had

held must be afforded to such an individual by virtue of the equal protection clause

of the state Constitution. The new article I, section 14.1 provided simply that “[i]f

a felony is prosecuted by indictment, there shall be no postindictment preliminary

hearing,” and made no specific mention of the state equal protection clause. The

question in Bowens was how to reconcile the two state constitutional provisions.

In addressing that issue, the court in Bowens first set forth the applicable general

principle of law: “ ‘[W]hen constitutional provisions can reasonably be construed

35

so as to avoid conflict, such a construction should be adopted. [Citations.] As a

means of avoiding conflict, a recent, specific provision is deemed to carve out an

exception to and thereby limit an older, general provision.’ ” (Bowens, supra, 1

Cal.4th at p. 45, italics added.) The court in Bowens then explained how that

principle applied to the situation before it: “To the extent Hawkins mandates that

an indicted defendant be afforded a postindictment preliminary hearing, the

voters’ adoption of article I, section 14.1 must be seen as abrogating that holding,

and limiting the scope of the state constitutional right of equal protection (Cal.

Const., art. I, § 7) as it relates to the constitutionally mandated indictment process.

[Citations.] Similarly, article I, section 14.1, also limits and thereby precludes a

challenge based on the due process clause contained in article I, section 7 of the

California Constitution, an issue not reached by the court in Hawkins.” (Bowens,

supra, 1 Cal.4th at p. 45; see also Izazaga v. Superior Court (1991) 54 Cal.3d 356,

371-372 (Izazaga).)

Applying similar reasoning in the present context, we properly must view

the adoption of Proposition 8 as carving out an exception to the preexisting scope

of the privacy and due process clauses of the California Constitution as interpreted

by the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757. The scope

of the exception created by Proposition 8, however, necessarily is determined and

limited by the specific language and scope of the new constitutional provision

added by the ballot measure. Here the new constitutional provision (art. I, § 7.5)

provides in full: “Only marriage between a man and a woman is valid or

recognized in California.” 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

36

law to opposite-sex couples, and thereby modifying the decision in the Marriage

Cases, supra, 43 Cal.4th 757, 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 (see, e.g., In re Thiery S. (1979) 19 Cal.3d 727, 744; Warne v.

Harkness (1963) 60 Cal.2d 579, 587-588), 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.

This understanding of the limited scope of Proposition 8 is confirmed by

the circumstance that the drafters of that measure drew the language of the

initiative directly from the wording of Family Code section 308.5, the statutory

provision embodied in Proposition 22. Prior to the drafting and adoption of

Proposition 8, the identical language (“Only marriage between a man and a

woman is valid or recognized in California”) — when used in Family Code

section 308.5 — was interpreted in Knight v. Superior Court (2005) 128

Cal.App.4th 14 (Knight) simply as limiting access to the relationship designated

as marriage to a man and a woman, but not as affecting the right of same-sex

couples to possess comparable substantive rights so long as those rights did not

include the designation of “marriage.” (Knight, supra, 128 Cal.App.4th at pp. 23-

37

25.) In view of the decision in Knight, the addition of this very same language to

the California Constitution in new article I, section 7.5 does not affect the

continued validity of the provisions of the California Constitution that protect the

familial rights of same-sex couples, except to the extent those rights include access

to the designation of “marriage.” Because the provision added to the California

Constitution by Proposition 8 is essentially the constitutional analog of Family

Code section 308.5, which already had been construed as affecting only access to

the designation of “marriage,” the new constitutional provision cannot properly be

interpreted as having repealed, by implication, the preexisting state constitutional

right of same-sex couples to enter into an officially recognized and protected

family relationship except insofar as that preexisting constitutional right included

the right of access to the designation of marriage.

In addition to the language of Proposition 8 itself and the preexisting

judicial interpretation of that language in the decision in Knight, supra, 128

Cal.App.4th 14, the ballot arguments submitted by the supporters of Proposition 8

establish that the purpose of that initiative measure was simply to restore the

traditional definition of marriage as referring to a union between a man and a

woman, and not to abrogate or eliminate the constitutional right of same-sex

couples to establish an officially recognized family relationship (with comparable

rights and responsibilities) bearing some other designation. (See Voter

Information Guide, Gen. Elec. (Nov. 4, 2008) argument in favor of Prop. 8 and

rebuttal to argument against Prop. 8, pp. 56-57 (November 2008 Voter

Information Guide).)8


8

We note in this regard that an alternative, much more sweeping initiative

measure — proposing the addition of a new constitutional section that would have
provided not only that “[o]nly marriage between one man and one woman is valid

(footnote continued on next page)

38

We recognize that the ballot argument in favor of Proposition 8

unquestionably indicates that the proponents of Proposition 8 very strongly

disagreed with the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757,

but a reading of this ballot argument in its entirety demonstrates that the

proponents’ objection to that ruling was directed at the opinion’s conclusions that

the statutes limiting the designation of “marriage” to couples comprised of a man

and a woman were unconstitutional and that same-sex couples, like opposite-sex

couples, have the right to obtain marriage licenses and enter into the institution

designated as “marriage.” Nothing in the ballot argument in favor of Proposition 8

or in the rebuttal to the argument against it informed the voters that this measure

was intended to or would have the effect of abrogating the constitutional right of

same-sex couples to enter into an officially recognized family relationship with a

designation other than marriage. On the contrary, the rebuttal to the argument

against Proposition 8 emphasized that adoption of Proposition 8 would mean that

only marriage between a man and a woman will be valid or recognized in

California, but that Proposition 8 would not take away “any other rights or

benefits” of same-sex couples — rights that included the constitutional right, as set


(footnote continued from previous page)

or recognized in California,” but also that “[n]either the Legislature nor any court,
government institution, government agency, initiative statute, local government, or
government official shall . . . bestow statutory rights, incidents, or employee
benefits of marriage on unmarried individuals” — was circulated for signature at
the same time as Proposition 8, but did not obtain sufficient signatures to qualify
for the ballot. (Sect. of State, 2008 Ballot Measure Update as of May 2, 2008,
No. 1293 (07-0061) <http://www.sos.ca.gov/elections/
elections_j_050208.htm#failed> [as of May 26, 2009].)

39

forth in the majority opinion in the Marriage Cases, to establish an officially

recognized family union with the person of one’s choice.9

It is perhaps arguable that the language of the official short title and

summary of Proposition 8 prepared by the Attorney General is more ambiguous

than the proposition’s text with regard to the measure’s scope, because the short

title assigned by the Attorney General stated simply that Proposition 8 “eliminates

the right of same-sex couples to marry” and the Attorney General’s summary

indicated that Proposition 8 “[c]hanges the California Constitution to eliminate the

right of same-sex couples to marry in California.” (Nov. 2008 Voter Information

Guide, supra, Official Title and Summary, p. 54.) In light of the language of

Proposition 8 itself and the focus of the controversy surrounding the proposition,

however, it is likely that voters who reviewed the ballot pamphlet understood the

phrase “right to marry” in the Attorney General’s title and summary to refer, in its

common and most familiar meaning, to the right to enter into the official family

relationship designated “marriage,” and thus correctly understood that

Proposition 8 would eliminate only the right of same-sex couples to enter into the

relationship bearing the designation of “marriage.” Nothing in the Attorney

General’s title or summary suggests that Proposition 8 would eliminate the

constitutional right of same-sex couples to enter into an officially recognized

family relationship bearing a designation other than “marriage.”10 Indeed, at oral


9

The rebuttal to the argument against Proposition 8 stated in this regard:

“Your YES vote on Proposition 8 means that only marriage between a man and a
woman will be valid or recognized in California, regardless of when or where
performed. But Prop. 8 will NOT take away any other rights or benefits of gay
couples
.” (Nov. 2008 Voter Information Guide, supra, rebuttal to argument
against Prop. 8, p. 57, italics added.)

10

The analysis of Proposition 8 by the Legislative Analyst that also appeared

in the ballot pamphlet similarly used the phrase “right to marry” to refer to the

(footnote continued on next page)

40

argument, counsel for interveners acknowledged that Proposition 8 properly is

interpreted as affecting only access to the designation of “marriage” and not the

other aspects of the rights of privacy and due process set forth in the majority

opinion in the Marriage Cases, supra, 43 Cal.4th 757.

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.”

(Marriage Cases, supra, 43 Cal.4th 757, 781.) Like opposite-sex couples, same-

sex couples enjoy this protection not as a matter of legislative grace, but of

constitutional right.

3

Third, Proposition 8 also has a similarly limited effect on the holdings of

the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757, relating to the


(footnote continued from previous page)

right to enter into the relationship designated “marriage.” In describing
Proposition 8, the analysis stated: “This measure amends the California
Constitution to specify that only marriage between a man and a woman is valid or
recognized in California. As a result, notwithstanding the California Supreme
Court ruling of May 2008, marriage would be limited to individuals of the
opposite sex, and individuals of the same sex would not have the right to marry in
California.” (Nov. 2008 Voter Information Guide, supra, Analysis by Legis.
Analyst, p. 55.)

41

state constitutional equal protection clause. As we have seen, in the Marriage

Cases the majority opinion held that sexual orientation constitutes a suspect

classification for purposes of analysis under the state equal protection clause, and

that statutes according differential treatment on the basis of sexual orientation are

subject to the strict scrutiny standard of review. These general state equal

protection principles established in the Marriage Cases are unaffected by the new

section added to the California Constitution by Proposition 8. Of course, with

respect to the specific subject of the designation of the word “marriage,”

Proposition 8 does change the rule, set forth in the majority opinion in the

Marriage Cases, that limiting access to this designation to opposite-sex couples

constitutes an impermissible violation of the state equal protection clause. As

explained above, by incorporating into the California Constitution a specific

provision that expressly restricts the designation of “marriage” to the union of a

man and a woman, Proposition 8 must be understood as creating a limited

exception to the state equal protection clause as interpreted in the majority opinion

in the Marriage Cases. (See, e.g., Bowens, supra, 1 Cal.4th 36, 45; Izazaga,

supra, 54 Cal.3d 356, 371-372.) This exception — although constituting the

governing state constitutional rule with regard to the specific matter it

addresses — does not alter the general equal protection principles set forth in the

Marriage Cases and in other California decisions interpreting and applying the

state constitutional equal protection clause. Those principles continue to apply in

all other contexts.

4

In sum, although Proposition 8 changes the state Constitution, as

interpreted in the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757,

to provide that restricting the family designation of “marriage” to opposite-sex

couples only, and withholding that designation from same-sex couples, no longer

42

violates the state Constitution, in all other respects same-sex couples retain the

same substantive protections embodied in the state constitutional rights of privacy

and due process as those accorded to opposite-sex couples and the same broad

protections under the state equal protection clause that are set forth in the majority

opinion in the Marriage Cases, including the general principle that sexual

orientation constitutes a suspect classification and that statutes according

differential treatment on the basis of sexual orientation are constitutionally

permissible only if they satisfy the strict scrutiny standard of review.

III

Having analyzed and clarified the effect of Proposition 8 on the state

constitutional rights of same-sex couples as determined in the Marriage Cases,

supra, 43 Cal.4th 757, we now address the multiple challenges under the

California Constitution that have been advanced against Proposition 8 in the

present proceeding.11 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.

A

Article II, section 1 of the California Constitution states in full: “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.” This provision originated in one of the initial

sections of the Declaration of Rights contained in California’s first Constitution


11

In these cases, petitioners have not raised any federal constitutional

challenge to Proposition 8.

43

(Cal. Const. of 1849, art. I, § 2),12 and reflects a basic precept of our governmental

system: that the people have the constitutional right to alter or reform their

government. This fundamental principle underlies the provisions concerning the

amendment and revision of our state Constitution.

The provisions of the California Constitution relating to amending and

revising the Constitution currently are set forth principally in article XVIII.

Section 1 of article XVIII provides in relevant part that “[t]he Legislature by

rollcall vote entered in the journal, two-thirds of the membership of each house

concurring, may propose an amendment or revision of the Constitution and in the

same manner may amend or withdraw its proposal.” (Italics added.) Section 2

provides in relevant part: “The Legislature by rollcall vote entered in the journal,

two-thirds of the membership of each house concurring, may submit at a general

election the question whether to call a convention to revise the Constitution. If the

majority vote yes on that question, within 6 months the Legislature shall provide

for the convention.” (Italics added.) Section 3 provides: “The electors may

amend the Constitution by initiative.” (Italics added.) Finally, section 4 provides

in relevant part: “A proposed amendment or revision shall be submitted to the


12

Article I, section 2 of the 1849 Constitution read in full: “All political

power is inherent in the people. Government is instituted for the protection,
security, and benefit of the people; and they have the right to alter or reform the
same, whenever the public good may require it.” When the California
Constitution was revised in 1879, this section was carried over, without change, as
article I, section 2. In a reorganization of article I approved by the voters at the
November 1974 election, the language of the section was modified very slightly
and moved to article I, section 26. Two years later, in a further reorganization of
various constitutional provisions approved by the voters at the June 1976 election,
this provision was renumbered as article II, section 1.

44

electors and if approved by a majority of votes thereon takes effect the day after

the election unless the measure provides otherwise.” (Italics added.)13

The other current provisions of our state Constitution pertaining to

amendment or revision of the Constitution are contained in article II, section 8, the

section that relates generally to the initiative power. Article II, section 8,

subdivision (a) provides in full: “The initiative is the power of the electors to

propose statutes and amendments to the Constitution and to adopt or reject them.”

(Italics added.) Article II, section 8, subdivision (b) provides in full: “An initiative

measure may be proposed by presenting to the Secretary of State a petition that

sets forth the text of the proposed statute or amendment to the Constitution and is

certified to have been signed by electors equal in number to 5 percent in the case

of a statute, and 8 percent in the case of an amendment to the Constitution, of the

votes for all candidates for Governor at the last gubernatorial election.”


13

Article XVIII of the California Constitution provides in full:

“Section 1. The Legislature by rollcall vote entered in the journal, two-

thirds of the membership of each house concurring, may propose an amendment or
revision of the Constitution and in the same manner may amend or withdraw its
proposal. Each amendment shall be so prepared and submitted that it can be voted
on separately.


“Section 2. The Legislature by rollcall vote entered in the journal, two-

thirds of the membership of each house concurring, may submit at a general
election the question whether to call a convention to revise the Constitution. If the
majority vote yes on that question, within 6 months the Legislature shall provide
for the convention. Delegates to a constitutional convention shall be voters
elected from districts as nearly as equal in population as may be practicable.


“Section 3. The electors may amend the Constitution by initiative.

“Section 4. A proposed amendment or revision shall be submitted to the

electors and if approved by a majority of votes thereon takes effect the day after
the election unless the measure provides otherwise. If provisions of 2 or more
measures approved at the same election conflict, those of the measure receiving
the highest affirmative vote shall prevail.”

45

As already noted, under these constitutional provisions an amendment to

the California Constitution may be proposed to the electorate either by the

required vote of the Legislature or by an initiative petition signed by the requisite

number of voters. A revision to the California Constitution may be proposed

either by the required vote of the Legislature or by a constitutional convention

(proposed by the Legislature and approved by the voters). Either a proposed

amendment or a proposed revision of the Constitution must be submitted to the

voters, and becomes effective if approved by a majority of votes cast thereon at

the election. Under these provisions, although the initiative power may be used to

amend the California Constitution, it may not be used to revise the Constitution.

To understand the distinction between an amendment to, and a revision of,

the Constitution, as those terms are used in the current provisions of the California

Constitution, it is necessary to examine the origin and history of this distinction in

our state Constitution as well as the numerous California decisions that have

analyzed and applied the distinction over the course of many years. We proceed

to review that history.

B

As explained by a number of 19th- and early 20th-century legal treatises,

although the United States Constitution and a few of the earliest state constitutions

provided for the proposal of constitutional changes either by a constitutional

convention or by the jurisdiction’s legislative body, most early state constitutions

authorized the proposal of constitutional changes by only one of these means (that

is, either by constitutional convention only or by the legislature only), and none of

the early constitutions — including the United States Constitution — drew any

distinction between the proposal of constitutional amendments and constitutional

revisions. (See Dodd, The Revision and Amendment of State Constitutions (1910)

pp. 118-120 (Dodd Treatise); Jameson, A Treatise on Constitutional Conventions:

46

Their History, Powers, and Modes of Proceeding (4th ed. 1887) §§ 530-532,

pp. 550-552 (Jameson Treatise).) (The United States Constitution, of course, still

does not distinguish between constitutional amendments and constitutional

revisions, referring only to “amendments to this Constitution.” (U.S. Const.,

art. V.))

Beginning in the 1830’s, however, a number of states whose constitutions

employed a constitutional convention for the proposal of any constitutional change

found that such a convention’s “cumbersomeness for small changes” rendered it

advisable “to adopt in addition or as a substitute the method of initiating proposed

amendments in the legislature.” (Dodd Treatise, supra, at p. 120.) The treatises

report that, over the next few decades, new constitutional provisions governing the

procedure for changing state constitutions — adopted either in newly admitted

states or through the modification of already existing state constitutions —

demonstrated “a growing conviction that the legislative mode has advantages

which make its more general adoption seem desirable, and yet that it alone is not

adequate to the exigencies of the times, but needs to have coupled with it a

provision for a convention when the people should deem it necessary or expedient

to make a general revision of the constitution.” (Jameson Treatise, supra, § 531,

p. 552, italics added; see also Dodd Treatise, supra, at p. 120.) Many of these

state constitutional provisions — like the provision adopted as part of the original

California Constitution — authorized the state legislative body to propose any

constitutional amendment but provided that a constitutional revision could be

proposed only by a constitutional convention. (See Jameson Treatise, § 574c,

pp. 610-612.)

In 1849, in anticipation of California’s application to the United States

Congress for admission as a new state, a constitutional convention was held in

California to draft a constitution to govern the state. (See generally Grodin et al.,

47

The California State Constitution: A Reference Guide (1993) pp. 2-3 (hereafter

California Constitution Reference Guide); Burns, Taming the Elephant: An

Introduction to California’s Statehood and Constitutional Era (2003) Cal. History,

vol. 81, No. 3/4, pp. 6-7.) In drafting the first California Constitution, the

convention delegates frequently drew upon constitutional provisions contained in

other state constitutions (see Browne, Rep. of the Debates in Convention of Cal.

on Formation of State Const. (1850) passim (hereafter 1849 Debates)), and this

was the case with respect to the constitutional provisions relating to the “Mode of

Amending and Revising the Constitution,” adopted as article X of the 1849

Constitution. (1849 Debates, at pp. 354-361.) Article X of that Constitution,

modeled on similar provisions in New York’s then-current constitution (1849

Debates, at pp. 355, 359), contained two sections. Section 1 of article X of the

1849 Constitution provided in relevant part that “[a]ny amendment or amendments

to this Constitution, may be proposed in the Senate or Assembly” (italics added),

and further specified that if such amendment was approved by a majority of each

legislative chamber in two successive legislative sessions, the proposed

amendment would be submitted to a statewide vote of the electors and would

become part of the Constitution if ratified by a majority of those voting on the

measure. Section 2 provided in relevant part: “And if, at any time two-thirds of

the Senate and Assembly shall think it necessary to revise and change this entire

Constitution, they shall recommend to the electors, at the next election for

members of the Legislature, to vote for or against the convention” (italics added),

and further provided that if a majority of electors voted in favor of calling a

48

constitutional convention, the Legislature, at its next session, must call such a

convention to consider such a revision.14

Accordingly, under the 1849 Constitution, “any amendment or

amendments” to the Constitution could be proposed by the Legislature and

submitted directly to the people, but if the Legislature thought it necessary “to

revise and change [the] entire Constitution,” a constitutional convention had to be

convened to propose such a revision. These provisions represent the origin of the

amendment/revision distinction under the California Constitution, and reveal not

only the narrow range of the type of proposed constitutional change that


14

Article X of the 1849 Constitution, entitled “Mode of Amending and

Revising the Constitution,” read in full:


“Section 1. Any amendment, or amendments to this Constitution, may be

proposed in the Senate or Assembly; and if the same shall be agreed to by a
majority of the members elected to each of the two houses, such proposed
amendment or amendments, shall be entered on their journals, with the yeas and
nays taken thereon, and referred to the Legislature then next to be chosen, and
shall be published for three months next preceding the time of making such
choice. And if, in the Legislature next chosen as aforesaid, such proposed
amendment or amendments, shall be agreed to by a majority of all the members
elected to each house, then it shall be the duty of the Legislature to submit such
proposed amendment or amendments to the people, in such manner, and at such
time as the Legislature shall prescribe; and if the people shall approve and ratify
such amendment or amendments, by a majority of the electors qualified to vote for
members of the Legislature, voting thereon, such amendment or amendments shall
become part of the Constitution.


“Section 2. And if, at any time two-thirds of the Senate and Assembly shall

think it necessary to revise and change this entire Constitution, they shall
recommend to the electors, at the next election for members of the Legislature, to
vote for or against the convention; and if it shall appear that a majority of the
electors voting at such election have voted in favor of calling a convention, the
Legislature shall, at its next session, provide by law for calling a convention, to be
holden within six months after the passage of such law; and such convention shall
consist of a number of members not less than that of both branches of the
Legislature.”

49

reasonably could be viewed as a constitutional revision (a proposal “to revise and

change this entire Constitution”), but also that the amendment/revision distinction

long predates the appearance of the initiative process in California.

C

During the 30 years in which the 1849 Constitution was in effect, no

published California decision addressed the amendment/revision dichotomy,

apparently because no claim was raised that any constitutional amendment

proposed by the Legislature in those years constituted a revision. In 1877, in

response to significant economic and demographic changes in California (see Cal.

Constitution Reference Guide, supra, at pp. 9-10), the Legislature submitted to the

voters the question of calling a state constitutional convention to revise the 1849

Constitution, and a majority of voters approved the measure. As a result, a

constitutional convention was convened, beginning its deliberations in September

1878 and concluding its work in March 1879. The resulting proposed revised

Constitution was put before the voters in May 1879 and was ratified at that

election. (See Lee, The Revision of California’s Constitution (Apr. 1991) Cal.

Policy Seminar Brief, p. 2.)

The provisions relating to the procedure for amending and revising the

Constitution were set forth in article XVIII of the 1879 Constitution, and those

provisions retained the same basic structure as the provisions of article X of the

1849 Constitution with respect to the amendment/revision dichotomy. As adopted

in 1879, section 1 of former article XVIII provided that “[a]ny amendment or

amendments to this Constitution may be proposed in the Senate or Assembly”

(italics added), and further provided for direct submission of such proposed

amendment or amendments to a vote of the electors if approved by the requisite

50

vote of each legislative chamber.15 Section 2 of article XVIII provided that

“[w]henever two-thirds of the members elected to each branch of the Legislature

shall deem it necessary to revise this Constitution, they shall recommend to the

electors to vote at the next general election for or against a Convention for that

purpose” (italics added), and that if a majority of voters approved the calling of a

constitutional convention, the Legislature should call such a convention at its next

session. Section 2 further provided that “the Constitution that may be agreed upon

by such Convention shall be submitted to the people for their ratification or

rejection,” and that if a majority voted in favor of ratification “it shall be the duty

of the Executive to declare . . . such Constitution . . . to be the Constitution of the

State of California. ” (Italics added.)16

15

Section 1 of article XVIII of the 1879 Constitution differed from section 1

of article X of the 1849 Constitution in a number of respects. First, although the
1849 Constitution required approval of a proposed amendment by only a majority
of the members of each house of the Legislature, the 1879 Constitution required a
two-thirds
vote of the members of each house, but unlike the 1849 Constitution,
which required majorities in two successive legislative sessions to approve the
proposed amendment or amendments, the 1879 Constitution permitted a proposed
amendment to be submitted to the voters if approved by two-thirds of the members
of each chamber in a single legislative session. Second, the 1879 constitutional
provision added a new requirement, specifying that if more than one amendment
were submitted at the same election, “they shall be so prepared and distinguished,
by numbers or otherwise, that each can be voted on separately.” (Id., art. XVIII,
§ 1; see Californians for an Open Primary v. McPherson (2006) 38 Cal.4th 735
(Californians for an Open Primary) [analyzing the separate-vote requirement].)

16

As adopted in 1879, article XVIII, entitled “Amending and Revising the

Constitution,” provided in full:


“SECTION 1. Any amendment or amendments to this Constitution may be

proposed in the Senate or Assembly, and if two-thirds of all the members elected
to each of the two Houses shall vote in favor thereof, such proposed amendment or
amendments shall be entered in their Journals, with the yeas and nays taken
thereon; and it shall be the duty of the Legislature to submit such proposed

(footnote continued on next page)

51

Accordingly, under the 1879 Constitution as originally adopted, as under

the 1849 Constitution, a revision of the constitution could be proposed only by a

constitutional convention and contemplated a potentially broad reworking of the

constitutional structure and provisions, whereas “any amendment or amendments

to the Constitution could be proposed, and submitted directly to a vote of the

people, by the Legislature.


(footnote continued from previous page)

amendment or amendments to the people in such manner, and at such time, and
after such publication as may be deemed expedient. Should more amendments
than one be submitted at the same election they shall be so prepared and
distinguished, by numbers or otherwise, that each can be voted on separately. If
the people shall approve and ratify such amendment or amendments, or any of
them, by a majority of the qualified electors voting thereon such amendment or
amendments shall become a part of this Constitution.


“SEC. 2. Whenever two-thirds of the members elected to each branch of the

Legislature shall deem it necessary to revise this Constitution, they shall
recommend to the electors to vote at the next general election for or against a
Convention for that purpose, and if a majority of the electors voting at such
election on the proposition for a Convention shall vote in favor thereof, the
Legislature shall, at its next session, provide by law for calling the same. The
Convention shall consist of a number of delegates not to exceed that of both
branches of the Legislature, who shall be chosen in the same manner, and have the
same qualifications, as members of the Legislature. The delegates so elected shall
meet within three months after their election at such place as the Legislature may
direct. At a special election to be provided for by law, the Constitution that may
be agreed upon by such Convention shall be submitted to the people for their
ratification or rejection, in such manner as the Convention may determine. The
returns of such election shall, in such manner as the Convention shall direct, be
certified to the Executive of the State, who shall call to his assistance the
Controller, Treasurer, and Secretary of State, and compare the returns so certified
to him; and it shall be the duty of the Executive to declare, by his proclamation,
such Constitution, as may have been ratified by a majority of all the votes cast at
such special election, to be the Constitution of the State of California.”

52



D

It was under the 1879 Constitution that the distinction drawn in our state

Constitution between a constitutional amendment and a constitutional revision

first elicited discussion in a decision of this court. In Livermore v. Waite (1894)

102 Cal. 113 (Livermore), an action was brought to restrain the Secretary of State

from certifying placement on the ballot of a proposed amendment to the California

Constitution that had been adopted by two-thirds of each chamber of the

Legislature. The amendment in question proposed to change the location of the

state capital from Sacramento to San Jose, but the change was conditioned upon

the state’s receipt, from the City of San Jose, of “a site of not less than ten acres

and one million dollars before such removal shall be had.”

The decision of this court in Livermore, rendered 115 years ago, made it

plain that the measure in question in that case — proposing a change in the location

of the state capital from one city to another — very clearly constituted a

constitutional amendment rather than a constitutional revision, but in the course of

its opinion the court set forth a general description of the amendment/revision

dichotomy that, as we shall see, is relied upon in the present case by petitioners and

by the concurring opinion of Justice Werdegar (post, at pp. 6-7) and the concurring

and dissenting opinion of Justice Moreno (post, at pp. 7-8). In light of that reliance,

we shall set forth the relevant passage at some length.

In describing the then-existing provisions governing changes to the

California Constitution, the court in Livermore, supra, 102 Cal. 113, stated:

“Article XVIII of the constitution provides two methods by which changes may be

effected in that instrument, 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

53

previously submitted to it by two-thirds of the members of each branch of the

legislature. . . . 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 . . . . 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. Experience may disclose defects in some of its

details, or in the practical application of some of the principles or limitations which

it contains. The changed condition of affairs in different parts of the state, or the

changes of society or time, may demand the removal of some of these limitations,

or an extended application of its principles. So too, some 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 might

be of only temporary effect.” (Id. at pp. 117-119.)

As noted, the court in Livermore thereafter went on to make clear that the

type of measure at issue in that case — changing the location of the state

capital — without question constituted a constitutional amendment rather than a

constitutional revision. (Livermore, supra, 102 Cal. 113, 119.) Explaining that

the designation of the seat of government of a state is not necessarily a matter that

needs to be included within a state’s constitution at all, the court emphasized that

inasmuch as the existing California Constitution contained a provision designating

54

the City of Sacramento as the seat of state government, that part of the

Constitution “may be amended in the same manner as any other portion of that

instrument.” (102 Cal. at p. 119.)17

E

After the Livermore decision, the next relevant event in the historical

background we are reviewing came in 1911, with the adoption of the initiative

power as part of the California Constitution. As we have observed in past cases,

“The amendment of the California Constitution in 1911 to provide for the

initiative and referendum signifies one of the outstanding achievements of the

progressive movement of the early 1900’s.” (Associated Home Builders etc., Inc.

v. City of Livermore (1976) 18 Cal.3d 582, 591 (Associated Home Builders).) The

progressive movement, both in California and in other states, grew out of a

widespread belief that “moneyed special interest groups controlled government,

and that the people had no ability to break this control.” (Waters, Initiative and

Referendum Almanac (2003) p. 3; see generally Starr, Inventing the Dream:

California Through the Progressive Era (1985) pp. 199-282; Olin, California’s

Prodigal Sons: Hiram Johnson and the Progressives, 1911-1917 (1968) pp. 1-56;

17

Although the court in Livermore determined that the measure at issue

constituted a constitutional amendment rather than a constitutional revision, the
court went on to find that because it contained a proviso specifying that the
proposed constitutional provision would not become effective unless a condition
subsequent were fulfilled, the measure was not a proper amendment and should
not be submitted to the voters. (Livermore, supra, 102 Cal. at pp. 120-124.) This
aspect of the Livermore decision was sharply criticized by legal commentary of
that era (see Dodd Treatise, supra, at pp. 234-235 [“The California decision [in
Livermore v. Waite] is indefensible; it cannot be justified and can be explained
only upon the view that the court had determined to prevent the submission of the
amendment for removing the capitol, and could find no better reason to present for
its action”]), and in any event has no bearing on the present case because the
operative effect of Proposition 8 is not dependent upon a condition subsequent.

55

Mowry, The California Progressives (1951) pp. 1-104.) In California, a principal

target of the movement’s ire was the Southern Pacific Railroad, which the

movement’s supporters believed not only controlled local public officials and state

legislators but also had inordinate influence on the state’s judges, who — in the

view of the progressive movement —at times improperly had interpreted the law

in a manner unduly favorable to the railroad’s interest. (See, e.g., Starr, Inventing

the Dream, supra, at pp. 210, 254; Olin, Prodigal Sons, p. 3, fn. 8; Mowry,

California Progressives, pp. 13-14, 140-142, 148-149.) The initiative was viewed

as one means of restoring the people’s rightful control over their government, by

providing a method that would permit the people to propose and adopt statutory

provisions and constitutional amendments.18

As we explained in Associated Home Builders, supra, 18 Cal.3d 582, 591:

“Drafted in light of the theory that all power of government ultimately resides in

the people, the [1911] amendment speaks of the initiative and referendum, not as a

right granted the people, but as a power reserved by them.” The 1911 measure,

which amended the provisions of article IV, section 1, of the Constitution,

provided in relevant part: “The legislative power of this state shall be vested in a

senate and assembly which shall be designated ‘The legislature of the State of

California,’ but 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


18

The ballot pamphlet argument in favor of the measure that proposed adding

the initiative and referendum powers to the California Constitution concluded with
these words: “Are the people capable of self-government? If they are, this
amendment should be adopted. If they are not, this amendment should be
defeated.” (Sect. of State, Proposed Amends. to the Const. with Legislative
Reasons, Special Elec. (Oct. 10, 1911) Reasons why Sen. Const. Amend. No. 22
should be adopted.) The measure was approved by a three-to-one margin. (See
Sect. of State, Statement of the Vote of Cal. Special Elec. (Oct. 10, 1911) p. 5.)

56

independent of the legislature . . . . [¶] The first power reserved to the people

shall be known as the initiative. Upon the presentation to the secretary of state of

a petition . . . signed by [the requisite number of] qualified electors, . . . proposing

a law or amendment to the constitution, . . . the secretary of state shall submit the

said proposed law or amendment to the constitution to the electors at the next

succeeding general election . . . . [¶] . . . [¶] Any act, law or amendment to the

constitution submitted to the people by . . . initiative . . . petition and approved by

a majority of votes cast thereon, at any election, shall take effect five days after the

date of the official declaration of the vote by the secretary of state.” (Italics

added.) By virtue of this provision, an amendment to the California Constitution

could be proposed either by legislative action or by the people directly through the

initiative process.

F

In the years following the adoption of the initiative power in 1911,

numerous constitutional amendments were proposed through the initiative process,

and a substantial number of significant changes to the California Constitution were

adopted by that means. (See Key & Crouch, The Initiative and Referendum in

California (1938) pp. 459-471 [describing constitutional amendments adopted

through the initiative process between 1912 and 1936].) It was not until 1948, in

the case of McFadden v. Jordan, supra, 32 Cal.2d 330 (McFadden), that our court

had occasion to address the question whether an initiative measure that sought to

change the California Constitution could not be submitted to the voters because

the measure did not embody a constitutional amendment but instead constituted a

constitutional revision.

In McFadden, supra, 32 Cal.2d 330, the petitioners sought an order

prohibiting the Secretary of State from submitting to the voters a proposed

initiative amendment to the California Constitution that had garnered the

57

signatures of a sufficient number of qualified electors. The proposed amendment

at issue in that case was referred to popularly as the “ham and eggs” initiative,

because of the varied subjects it encompassed. In describing the proposition, the

court in McFadden observed: “The measure proposes to add to our present

Constitution ‘a new Article to be numbered Article XXXII thereof’ and to consist

of 12 separate sections (actually in the nature of separate articles) divided into

some 208 subsections (actually in the nature of sections) set forth in more than

21,000 words. The Constitution as now cast, with the amendments added since its

original adoption as revised in 1879, contains 25 articles divided into some 347

sections expressed in approximately 55,000 words.” (32 Cal.2d at p. 334.)

The opinion then went on to summarize the content of each of the

measure’s sections, a summary that runs a full six pages in the decision in the

Official Reports. (McFadden, supra, 32 Cal.2d at pp. 334-340.) A simple listing

of the titles and a truncated summary of each of the measure’s sections provides a

flavor of the varied nature and wide breadth of the proposal. Section I, entitled

“Principles and Purposes,” stated that it may be cited as “the California Bill of

Rights” and contained “declarations of various ethical, economic and

governmental concepts and philosophies.” (32 Cal.2d at p. 334.) Section II,

entitled “The California Pension Commission,” named the first five

commissioners to serve on the commission and established their salaries. Section

III, entitled “Retirement Pension Payments,” specified pension benefits to be paid

by the government to various categories of individuals. Section IV, entitled

“Wagering and Gaming,” contained 50 subsections related to that subject. Section

V, entitled “Taxes,” contained 16 subsections related to various types of taxes and

tax exemptions. Section VI, entitled “Oleomargarine,” provided that

oleomargarine could not be sold in California without a license and without

payment of a tax or fee. Section VII, entitled “Pertaining to the Healing Arts,”

58

contained 53 sections, creating a “California State Board of Naturopathic

Examiners” to supplement the existing medical boards and granting to that

board ― whose first members were specifically named ― extensive authority.

Section VIII, entitled “Civic Centers,” declared there to be a civic center at every

public school building within the state, and granted every nonprofit and

nonsectarian organization in the state formed for “political, economic, educational,

or moral activities,” the right to use such a civic center without charge or fee.

Section IX, entitled “Legislature, Elections, Committees,” contained three

subsections, which (1) provided for reapportionment of the state senate,

(2) prohibited cross-filing at primary elections, and (3) regulated the selection of

legislative committees. Section X, entitled “Fish, Game, Public Lands and

Waters,” contained five subsections regulating public lands and inland waters of

the state and granting various powers to the Fish and Game Commission.

Section XI, entitled “Surface Mining,” contained nine subsections regulating

surface mining in the state, including provisions for the issuance of operating

permits and for the imposition of penalties for violation of the regulations. The

final section, section XII, entitled “General,” contained nine subsections,

providing, among other things, for the repeal of any portion of the existing

Constitution which “is in conflict with any of the provisions of this article” and

further specifying that “[n]o injunction or writ of mandate, or other legal equitable

process, shall ever issue or be maintained to interfere with the effectiveness or

operation of this article.”

From this description of the measure at issue in McFadden, supra, 32

Cal.2d 330, it is apparent that were such an initiative measure to be proposed

today, the proposal undoubtedly would be challenged and held invalid under the

“single-subject rule” now embodied in article II, section 8, subdivision (d). (See,

e.g., Senate v. Jones (1999) 21 Cal.4th 1142, 1156-1168.) At the time of the

59

McFadden decision, however, there was no provision in the California

Constitution that applied the single-subject rule to initiative measures.19 The

petitioners in McFadden rested their constitutional challenge on the ground that

the measure proposed a revision of, rather than an amendment to, the state

Constitution.

In addressing this question, the court in McFadden observed that “[t]he

initiative power reserved by the people by amendment to the Constitution in 1911

(art. IV, § 1) applies only to the proposing and the adopting or rejecting of ‘laws

and amendments to the Constitution’ and does not purport to extend to a

constitutional revision.” (McFadden, supra, 32 Cal.2d at p. 333.) Noting that the

1911 initiative amendment was drafted and adopted long after the decision in

Livermore, supra, 102 Cal. 113, had discussed the distinction between a

constitutional amendment and a constitutional revision and had explained that a

constitutional revision could be proposed only by a constitutional convention, the

court in McFadden concluded: “It is thus clear that a revision of the Constitution

may be accomplished only through ratification by the people of a revised

constitution proposed by a convention called for that purpose . . . . Consequently

if the scope of the proposed initiative measure . . . now before us is so broad that if

such measure became law a substantial revision of our present state Constitution

would be effected, then the measure may not properly be submitted to the

electorate until and unless it is first agreed upon by a constitutional convention

. . . .” (32 Cal.2d at p. 334, italics added.)

19

An amendment requiring initiative measures to comply with the single-

subject rule was proposed and adopted within months of the McFadden decision
(at the election held in November 1948), apparently in response to the measure at
issue in McFadden. (See Amador Valley Joint Union High Sch. Dist. v. State Bd.
of Equalization
, supra, 22 Cal.3d 208, 229.)

60

After summarizing (as referred to above) the varied and extensive contents

of the measure at issue in that case, the court in McFadden stated: “Our review of

the subjects covered by the measure and of its effect on the totality of our plan of

government as now constituted does not purport to be exhaustive. It is amply

sufficient, however, to demonstrate the wide and diverse range of subject matters

proposed to be voted upon, and the revisional effect which it would necessarily

have on our basic plan of government. The proposal is offered as a single

amendment but it obviously is multifarious. . . . There is in the measure itself no

attempt to enumerate the various and many articles and sections of our present

Constitution which would be affected, altered, replaced, or repealed. It purports

only to add one new article but its framers found it necessary to include the

omnibus provision (§ XII, subdiv. (7)) that ‘If any section, subdivision, sentence,

clause or phrase of the constitution is in conflict with any of the provisions of this

article, such section, subsection, sentence, clause or phrase is to the extent of such

conflict hereby repealed.’ ” (McFadden, supra, 32 Cal.2d at pp. 345-346, first

italics added.)

In support of the validity of the measure, its proponents argued that only a

measure affecting all of the sections of the current Constitution should be

considered a revision, and that any measure affecting fewer than all such

provisions should be considered an amendment. The court in McFadden

responded: “We cannot accept such an arbitrary and strained minimization of

difference between amend and revise. The differentiation required is not merely

between two words; more accurately it is between two procedures and between

their respective fields of application. . . . [The proponents’] contention — that any

change less than a total one is but amendatory — would reduce to the rubble of

absurdity the bulwark so carefully erected and preserved. Each situation involving

the question of amendment, as contrasted with revision, of the Constitution must,

61

we think, be resolved upon its own facts. A case might, conceivably, be presented

where the question would be close and where there would be occasion to

undertake to define with nicety the line of demarcation; but we have no such case

or occasion here.” (McFadden, supra, 32 Cal.2d at pp. 347-348, last italics

added.)

The court concluded: “Applying the long established law to any tenable

view of the facts which have been related, it is overwhelmingly certain that the

measure now before us would constitute a revision of the Constitution rather than

an amendment . . . .” (McFadden, supra, 32 Cal.2d at pp. 349-350.) Accordingly,

the court issued a writ precluding the measure from being submitted to the voters.

(Id. at p. 351.)

G

In 1956, the California Legislature created a Citizens Legislative Advisory

Commission to study and evaluate the organization and procedures of the

Legislature, and a few years later that commission was requested to study and to

provide a recommendation with regard to problems and methods of constitutional

revision. (See Lee, The Revision of California’s Constitution, supra, Cal. Policy

Seminar Brief, pp. 3-4.) In March 1961, the commission presented its report and

recommendations on this subject to the Legislature, pointing out that the

California Constitution had been amended more frequently (323 times at that

point) than any other state constitution except that of Louisiana, that many of the

amendments were statutory in nature and required frequent amendment, and that

other states increasingly and successfully had used means other than a

constitutional convention — such as a legislatively appointed constitutional

commission — to formulate a constitutional revision to be submitted to the voters.

The commission’s report ultimately recommended that former article XVIII of the

California Constitution “be amended to permit the Legislature to submit to the

62

people a revised Constitution or a revision of any part thereof.” (Citizens Legis.

Advisory Com., Rep. and Recommendation on Const. Revision (Mar. 9, 1961)

p. 9, 2 Appen. to Assem. J. (1961 Reg. Sess.).)

In response to this recommendation, the Legislature approved a

constitutional amendment to be submitted to the voters, which proposed to amend

section 1 of former article XVIII to permit the Legislature to submit to the

electorate not only constitutional amendments but also revisions of all or part of

the Constitution. This proposed amendment was submitted to the voters as

Proposition 7 at the November 1962 general election.

The ballot pamphlet sent to the voters in advance of the election contained

an analysis of the measure prepared by the Legislative Counsel, as well as an

argument in favor of the proposition. (No argument against the measure was

submitted.) The Legislative Counsel’s analysis described the distinction between

constitutional amendments and constitutional revisions in the following terms:

“Under existing provisions the Legislature can only propose ‘amendments,’ that is

measures which propose changes specific and limited in nature. ‘Revisions,’ i.e.,

proposals which involve broad changes in all or a substantial part of the

Constitution, can presently be proposed only by convening a constitutional

convention.” (Proposed Amends. to Const., Gen. Elec. (Nov. 6, 1962) analysis of

Prop. 7 by Legis. Counsel, pt. I, p. 13, italics added.) The argument in favor of the

proposition observed that “[s]hort of a constitutional convention, California has no

way to make coordinated broad changes to renovate outdated sections and articles

in its Constitution” (ibid., argument in favor of Prop. 7, italics added), noted that

in the preceding decade 10 states had effected constitutional improvement by the

method proposed in the measure, and urged the electorate to vote in favor of the

proposal in order to “allow an alternative approach to necessary revisions in the

63

California Constitution.” (Ibid.) Proposition 7 was approved by the voters at the

November 1962 election.

As a consequence, since 1962 the California Constitution has authorized a

constitutional revision to be proposed for submission to the voters either by a

constitutional convention or by direct submission by the Legislature, permitting

the Legislature to propose “coordinated broad changes to renovate outdated

sections and articles” in the Constitution. (See also Californians for an Open

Primary, supra, 38 Cal.4th 735, 790 (conc. opn. of Moreno, J.) [discussing 1962

amendment and explaining that “[a] constitutional revision, by its very nature and

purpose,” constitutes “systematic, comprehensive constitutional renovation and

reform” (italics added)].)

H

The latest change to the provisions of the California Constitution relating to

amendment and revision of the Constitution occurred in 1970, when the provisions

of article XVIII were substantially edited, reorganized, and set forth in the four-

section format described, ante, at pages 44-45. These changes were submitted to

and approved by the voters as Proposition 16 at the November 3, 1970 election,

but they reflect no substantive modification of the amendment/revision dichotomy

or of the means by which either constitutional amendments or constitutional

revisions may be proposed for submission to the voters.

I

Although there have been no substantive changes in the relevant state

constitutional provisions since 1970, during the course of the past four decades

this court has had occasion to decide a significant number of cases in which an

initiative measure, adding or altering a provision or provisions of the California

Constitution, has been challenged on the ground that the measure represented a

constitutional revision rather than a constitutional amendment and thus could not

64

properly be adopted through the initiative process. These numerous judicial

opinions are highly significant to the issue before us, and accordingly we shall

review them in some detail.

1

Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization,

supra, 22 Cal.3d 208 (Amador), decided in 1978, was the first case after the 1948

decision in McFadden, supra, 32 Cal.2d 330, presenting this court with an

amendment/revision claim. In Amador, the petitioners raised a multipronged

constitutional challenge to Proposition 13, an initiative measure approved by the

voters at the June 1978 election that added a new article (art. XIII A) to the

California Constitution. Proposition 13 made major changes to the system of real

property taxation and taxing powers throughout California, “imposing important

limitations upon the assessment and taxing powers of state and local

governments.” (Amador, supra, at p. 218.) The initial claim addressed by the

court in Amador was the petitioners’ contention that “article XIII A 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.” (Id. at p. 221.)

After relating the pertinent provisions of article XVIII, the court in Amador

quoted from and discussed relevant portions of the Livermore and McFadden

decisions, and then set forth the general mode of analysis that, as we shall see, has

continued to be followed by our subsequent decisions. We stated in Amador in

this regard: “Taken together, our Livermore and McFadden decisions mandate

that our 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

65

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, supra, 22 Cal.3d at p. 223,

italics added.)

In applying this analysis to Proposition 13, the court in Amador, supra, 22

Cal.3d 208, first considered the quantitative nature of the changes effected by the

measure. Although the petitioners in that case claimed that eight separate articles

and 37 sections of the preexisting California Constitution would be affected by

Proposition 13, the court determined that this assessment by the petitioners was

based upon their erroneous interpretation of the new article and of its potential

effect on the prior constitutional framework. (22 Cal.3d at p. 224.) While

acknowledging that the new article would have a significant effect on many of the

sections of article XIII (the preexisting article on taxation), the court rejected the

claim that Proposition 13 amounted to a revision by reason of its quantitative

effect upon the Constitution. (22 Cal.3d at p. 224.)

The court then turned to the qualitative effects of Proposition 13. The

petitioners argued that Proposition 13 would have far reaching qualitative effects

upon the state’s basic governmental plan in two respects: “(1) the loss of ‘home

rule’ and (2) the conversion of our governmental framework from ‘republican’ to

‘democratic’ form.” (Amador, supra, 22 Cal.3d at p. 224.) The decision in

Amador analyzed each of these asserted effects and found that the measure would

not be as disruptive as suggested by the petitioners. With respect to home rule, the

court in Amador rejected the contention that simply because the Legislature was

66

given the authority to allocate the limited property tax revenue authorized by the

measure, Proposition 13 necessarily would lead to a system in which the

Legislature directed and controlled all local budgetary decisions, programs, and

service priorities. The court pointed out that legislation enacted after the passage

of the measure belied that claim, and also noted that Proposition 13 left local

entities free to raise additional revenue through special taxes approved by a two-

thirds vote of the electors. (22 Cal.3d at pp. 225-227.) With respect to the charge

that the measure would result in a change “from a ‘republican’ form of

government (i.e., lawmaking by elected representatives) to a ‘democratic’

governmental plan (i.e., lawmaking directly by the people)” because

Proposition 13 required that any special tax that a local entity wished to impose be

approved by a two-thirds vote of the electors (22 Cal.3d at p. 227), the court in

Amador concluded that the proposition was “more modest both in concept and

effect [than the petitioners suggested] and [did] not change our basic governmental

plan.” We explained that the measure affected only the limited area of taxation,

leaving undiminished the authority of representative elected bodies to enact

appropriate laws and regulations in all other areas. (Id. at pp. 227-228.)

Although the court acknowledged that the changes wrought by Proposition

13 were very significant, it nonetheless concluded that the measure constituted an

amendment rather than a revision. The court stated in this regard: “[I]t is apparent

that article XIII A will result in various substantial changes in the operation of the

former system of taxation. Yet, unlike the alterations effected by the McFadden

initiative discussed above, the article XIII A changes operate functionally within a

relatively narrow range to accomplish a new system of taxation which may

provide substantial tax relief for our citizens. We decline to hold that such a

limited purpose cannot be achieved directly by the people through the initiative

process.” (Amador, supra, 22 Cal.3d at p. 228.)

67



2

The year following Amador, supra, 22 Cal.3d 208, our court confronted the

amendment/revision question in the context of an initiative measure that amended

the California Constitution to permit the imposition of the death penalty in

response to this court’s decision in People v. Anderson (1972) 6 Cal.3d 628

(Anderson), which had concluded that imposition of the death penalty violated the

provision of the California Constitution prohibiting the infliction of cruel or

unusual punishment. In People v. Frierson (1979) 25 Cal.3d 142 (Frierson), the

defendant mounted a constitutional challenge to a death penalty statute enacted in

1977, and one of the claims he raised was that the 1972 initiative measure

reinstating the death penalty in California after Anderson constituted a

constitutional revision rather than a constitutional amendment and therefore was

invalid.

In the decision in Anderson, supra, 6 Cal.3d 628 — issued on February 17,

1972 — this court found California’s then-existing death penalty statute

unconstitutional on the ground that the death penalty itself was “unnecessary to

any legitimate goal of the state and . . . incompatible with the dignity of man and

the judicial process” (6 Cal.3d at p. 656) and thus violated the cruel or unusual

punishment clause of the California Constitution (then set forth in art. I, former

§ 6). (6 Cal.3d at pp. 645-656.)20 In response to Anderson, an initiative measure

was proposed to add a new section (§ 27) to article I of the California Constitution.

The new section provided: “All statutes of this State in effect on February 17,

1972, requiring, authorizing, imposing, or relating to the death penalty are in full


20

Pursuant to a revision of article I in 1974, the state constitutional

prohibition on cruel or unusual punishment is now set forth in article I, section 17.

68

force and effect, subject to legislative amendment or repeal by statute, initiative, or

referendum. [¶] The death penalty provided for under these statutes shall not be

deemed to be, or to constitute, the infliction of cruel or unusual punishments

within the meaning of Article I, Section 6 nor shall such punishment for such

offenses be deemed to contravene any other provision of this constitution.” The

voters approved this initiative measure at the November 1972 election.

In Frierson, supra, 25 Cal.3d 142, the defendant claimed the 1972 initiative

measure constituted a revision rather than an amendment of the Constitution,

arguing that article I, section 27 “contemplates ‘removal of judicial review’ of the

death penalty from a carefully built constitutional structure, thereby resulting in ‘a

significant change in a principle underlying our system of democratic government

and can only be accomplished by constitutional revision.’ ” (25 Cal.3d at p. 186.)

In responding to this contention, the lead opinion in Frierson acknowledged the

qualitative prong of the revision analysis set forth in Amador, supra, 22 Cal.3d

208 — that is, a constitutional change that accomplishes “ ‘far reaching changes in

the nature of our basic governmental plan’ ” may constitute a revision — but held

that article I, section 27 “accomplishes no such sweeping result.” (Frierson, at

pp. 186-187.) The opinion explained that the provision did not displace judicial

review of death sentences, and that the court would continue to review such death

sentences for compliance with all currently applicable laws, including the

restrictions placed on such sentences by the United States Constitution. The

opinion also observed that “adoption of defendant’s position might effectively bar

the people from ever directly reinstating the death penalty, despite the apparent

belief of a very substantial majority of our citizens in the necessity and

appropriateness of the ultimate punishment.” (Frierson, at p. 187.) Our opinion

69

in Frierson concluded that article I, section 27 constituted a permissible

constitutional amendment, not a revision. (Frierson, at p. 187.)21

3

Three years after Frierson, supra, 25 Cal.3d 142, in Brosnahan v. Brown

(1982) 32 Cal.3d 236 (Brosnahan), we addressed a multipronged constitutional

challenge to a lengthy and diverse criminal justice initiative measure that amended

various penal statutes and also made a number of significant changes to the

California constitutional provisions relating to criminal proceedings. That

measure, like the one currently before us, was commonly referred to by its ballot

designation as Proposition 8, and, to avoid confusion, we shall refer to that

measure as the “1982 Proposition 8.” Many of the changes embodied in the 1982

Proposition 8 reflected disagreement with decisions of the California Supreme

Court concerning various issues relating to criminal procedure; the proposition


21

The lead opinion in Frierson, supra, 25 Cal.3d 142, was signed by only

three justices; four justices declined to join in the opinion’s discussion of the
constitutionality of the 1977 death penalty statute. A majority of the court later
upheld the validity of the 1977 statute in People v. Jackson (1980) 28 Cal.3d 264
(Jackson), stating that “[m]ost of the arguments advanced by defendant were
discussed at considerable length in People v. Frierson, supra, 25 Cal.3d 142, 178-
188, 191-195, and we do not repeat them here.” (Jackson, supra, 28 Cal.3d at
p. 315.) The portions of the decision in Frierson that were cited in Jackson
include the discussion rejecting the claim that the 1972 measure reinstating the
death penalty amounted to a constitutional revision rather than a constitutional
amendment. Although three justices dissented in Jackson from the conclusion that
the 1977 death penalty statute was constitutional, those justices based their
conclusion on what they viewed as federal constitutional flaws in the 1977 statute.
No justice in Frierson, Jackson, or any other decision of this court has disagreed
with the conclusion that article I, section 27 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.

70

added, deleted, and revised a number of statutory and constitutional provisions to

change the rules embodied in those judicial decisions.

The main challenge to the 1982 Proposition 8 was the claim that the

initiative measure violated the single-subject rule (see Brosnahan, supra, 32

Cal.3d at pp. 245-253), but the petitioners in Brosnahan additionally contended

that the proposition was “such a ‘drastic and far-reaching’ measure as to constitute

a ‘revision’ of the state Constitution rather than a mere amendment thereof.” (32

Cal.3d at p. 260.)

In evaluating the latter claim, the court in Brosnahan, supra, 32 Cal.3d 236,

assessed both the quantitative and qualitative effects of the initiative measure. The

court initially found that the proposition had only “a limited quantitative effect”

(id. at p. 260) on the preexisting constitutional provisions, repealing one section of

article I (art. I, former § 12, relating to the right to bail) and adding, to that same

constitutional article, one new section containing seven subdivisions (art. I, § 28,

addressing the subjects of restitution for crime victims, the right to safe schools,

the right to truth in evidence, public safety bail, and the use of prior convictions in

criminal proceedings). The court in Brosnahan concluded that these changes, as a

quantitative matter, were “not ‘so extensive . . . as to change directly the

“substantial entirety” of the Constitution by the deletion or alteration of numerous

existing provisions . . . .’ ” (32 Cal.3d at p. 260.)

With respect to the qualitative effect of the measure, the court in Brosnahan

stated that “while 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.’ ” (Brosnahan, supra, 32 Cal.3d at p. 260, italics

added by Brosnahan.) In response to the petitioners’ contention that the

measure’s limitation upon plea negotiation and its creation of a right to safe

71

schools likely would have the effect of interfering with the judiciary’s ability to

perform its constitutional duty to decide cases and the further effect of abridging

the constitutional right to public education, the court in Brosnahan noted that the

“petitioners’ forecast of judicial and educational chaos is exaggerated and wholly

conjectural, based primarily upon essentially unpredictable fiscal or budgetary

constraints” (id. at p. 261). The court pointed out additionally that our decision in

Amador had “discounted similar dire predictions” and had rejected a similar

claim, because “ ‘nothing on the face of the [initiative measure]’ ” compelled such

results or demonstrated that the measure “ ‘necessarily and inevitably’ ” would

produce the feared effects. (Brosnahan, supra, 32 Cal.3d at p. 261, quoting

Amador, supra, 22 Cal.3d at pp. 225-226.)

Accordingly, finding that “nothing contained in [the 1982] Proposition 8

necessarily or inevitably will alter the basic governmental framework set forth in

our Constitution” (Brosnahan, supra, 32 Cal.3d at p. 261, italics added), the court

in Brosnahan concluded that the measure constituted an amendment to, and not a

revision of, the California Constitution.

4

A few years after the decision in Brosnahan, supra, 32 Cal.3d 236, our

court in In re Lance W. (1985) 37 Cal.3d 873 (Lance W.) addressed a number of

issues relating to one of the constitutional provisions that had been added by the

same initiative measure at issue in Brosnahan — article I, section 28, subdivision

(d) of the California Constitution (hereafter section 28(d)) — which provides in

relevant part that “[e]xcept as provided by statute hereafter enacted by a two-thirds

vote of the membership in each house of the Legislature, relevant evidence shall

not be excluded in any criminal proceeding . . . .”

The initial issue addressed in Lance W. was whether section 28(d) should

be interpreted as having altered the preexisting state constitutional rule excluding

72

evidence obtained in violation of the California constitutional provision

prohibiting unlawful searches and seizures, thus rendering the exclusionary rule

applicable in the search-and-seizure context only as required by the federal

Constitution. The defendant in Lance W. argued that because section 28(d) did not

refer specifically to article I, section 13 (the state constitutional search-and-seizure

provision) or to article I, section 24 (the provision confirming that rights

guaranteed by the state Constitution are not dependent on those guaranteed by the

United States Constitution), section 28(d) should not be interpreted as having

repealed or altered the state constitutional exclusionary rule. In analyzing this

point, the court in Lance W. first agreed with the defendant “that [the 1982]

Proposition 8 did not repeal either section 13 or section 24 of article I” and that

“[t]he substantive scope of both provisions remains unaffected by [the 1982]

Proposition 8. What would have been an unlawful search or seizure in this state

before the passage of that initiative would be unlawful today, and this is so even if

it would pass muster under the federal Constitution.” (Lance W., supra, 37 Cal.3d

at p. 886.) Nonetheless, the court in Lance W. concluded that “[w]hat [the 1982]

Proposition 8 does is to eliminate a judicially created remedy for violations of the

search and seizure provisions of the federal or state Constitutions, through the

exclusion of evidence so obtained, except to the extent that exclusion remains

federally compelled.” (Id. at pp. 886-887.) Accordingly, the court held that

section 28(b) properly must be interpreted “to permit exclusion of relevant, but

unlawfully obtained evidence, only if exclusion is required by the United States

Constitution . . . .” (37 Cal.3d at p. 890.)

After determining that section 28(d) properly should be interpreted as

having abrogated the state constitutional exclusionary rule, the court in Lance W.,

supra, 37 Cal.3d 873, turned to an additional argument that was raised in that

case — namely, that if section 28(d) were interpreted as having such an effect, the

73

provision properly must be characterized as “an impermissible constitutional

revision, rather than amendment, because it abrogates the judicial function of

fashioning appropriate remedies for violation of constitutional rights.” (37 Cal.3d

at p. 885.)

In addressing the amendment/revision argument, the court in Lance W. first

pointed out that “[w]e have heretofore rejected a similar attack on [the 1982]

Proposition 8 in its entirety” (citing Brosnahan, supra, 32 Cal.3d 236, 260-261)

and that “[o]ur decision [in Brosnahan] necessarily encompassed a conclusion that

section 28(d) was properly adopted through the amendment procedure . . . .”

(Lance W., supra, 37 Cal.3d at p. 891.)

The court in Lance W., supra, 37 Cal.3d 873, then went on to further

explain why the specific constitutional provision at issue in that case properly

embodied a constitutional amendment rather than a constitutional revision. The

court stated in this regard: “The people could by amendment of the Constitution

repeal section 13 of article I in its entirety. The adoption of section 28(d) which

affects only one incident of that guarantee of freedom from unlawful search and

seizure, a judicially created remedy for violation of the guarantee, 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 within the contemplation of article

XVIII.” (Id. at p. 892, italics added.)

5

Our court next addressed the amendment/revision issue in Raven v.

Deukmejian (1990) 52 Cal.3d 336 (Raven). Because Raven is the only case in

which we have found a proposed constitutional amendment to constitute an

impermissible constitutional revision resulting from the measure’s far reaching

qualitative effect on the preexisting constitutional structure, petitioners place

74

considerable reliance upon our decision in that matter. For that reason, we discuss

the decision in some detail.

In Raven, supra, 52 Cal.3d 336, our court faced a constitutional challenge

to an initiative measure referred to as Proposition 115, a diverse criminal justice

initiative somewhat analogous to the 1982 Proposition 8 that had been analyzed

and upheld in our decision in Brosnahan, supra, 32 Cal.3d 236, discussed, ante, at

pages 68-70. The preamble to Proposition 115 affords an accurate view of the

measure’s general purpose and scope, stating in part that “we the people . . . find

that it is necessary to reform the law as developed in numerous California

Supreme Court decisions and as set forth in the statutes of this state. These

decisions and statutes have unnecessarily expanded the rights of accused criminals

far beyond that which is required by the United States Constitution, thereby

unnecessarily adding to the costs of criminal cases, and diverting the judicial

process from its function as a quest for truth.” (Ballot Pamp., Primary Elec.

(June 5, 1990) Prop. 115, text of proposed law, p. 33.)

Proposition 115 made a significant number of distinct changes to the

California Constitution. The measure (1) added a new section 14.1 to article I,

providing that “[i]f a felony is prosecuted by indictment, there shall be no

postindictment preliminary hearing”; (2) amended article I, section 24 to provide

that numerous state constitutional provisions granting rights to criminal defendants

shall not be construed to afford greater rights than those afforded by analogous

provisions of the United States Constitution (this is the part of Proposition 115 that

the court found embodied a constitutional revision and that we quote and discuss

below); (3) added a new section 29 to article I, providing that “[i]n a criminal case,

the people of the State of California have the right to due process of law and to a

speedy and public trial”; (4) added a new section 30, subdivision (a), to article I,

providing that “[t]his Constitution shall not be construed by the courts to prohibit

75

the joining of criminal cases as prescribed by the Legislature or by the people

through the initiative process”; (5) added a new section 30, subdivision (b), to

article I, providing that “hearsay evidence shall be admissible at preliminary

hearings”; (6) added a new section 30, subdivision (c), to article I, providing that

“discovery in criminal cases shall be reciprocal in nature”; and (7) added and

amended a variety of criminal statutory provisions, making procedural changes

and altering the substance of a variety of criminal offenses, including the

provisions relating to murder and to the death penalty.

After summarizing Proposition 115’s numerous provisions, the court in

Raven, supra, 52 Cal.3d 336, initially addressed the petitioners’ single-subject

challenge to the measure. Relying primarily upon our earlier decision in

Brosnahan, supra, 32 Cal.3d 236, the court in Raven rejected the single-subject

challenge to Proposition 115 (Raven, at pp. 346-349) and then turned to the

amendment/revision issue.

The court in Raven began its discussion of this issue by setting forth the

basic constitutional framework: “Although ‘[t]he electors may amend the

Constitution by initiative’ (Cal. Const., art. XVIII, § 3), a ‘revision’ of the

Constitution may be accomplished only by convening a constitutional convention

and obtaining popular ratification (id., § 2), or by legislative submission of the

measure to the voters (id., § 1).” (Raven, supra, 52 Cal.3d at p. 349.) The court

then observed that “[a]lthough the Constitution does not define the terms

‘amendment’ or ‘revision,’ the courts have developed some guidelines helpful in

resolving the present issue. As explained in Amador, and confirmed in

Brosnahan, our revision/amendment analysis has a dual aspect, requiring us to

examine both the quantitative and qualitative effects of the measure on our

constitutional scheme. Substantial changes in either respect could amount to a

revision.” (Id. at p. 350.)

76

The court then explained that the petitioners’ revision argument focused

primarily on only one of the constitutional changes made by Proposition 115,

“namely, the amendment to article I, section 24, of the state Constitution relating

to the independent nature of certain rights guaranteed by that Constitution.”

(Raven, supra, 52 Cal.3d at p. 350.) The court, in expressly rejecting the

suggestion that any of the other, more specific constitutional changes made by

Proposition 115 constituted a revision, stated: “The additional constitutional

changes effected by Proposition 115, involving such isolated matters as

postindictment preliminary hearings, joinder of cases, use of hearsay, reciprocal

discovery, and the People’s right to due process and a speedy, public trial, cannot

be deemed matters which standing alone, or in the aggregate, substantially

change our preexisting governmental framework.” (52 Cal.3d at p. 350, italics

added.)

The court then proceeded in Raven, supra, 52 Cal.3d 336, to analyze the

question whether the changes effected by the amendment of article I, section 24

constituted a revision, beginning its analysis by setting forth the changes in full.

“Article I, section 24, added in 1974, originally provided in relevant part that

‘Rights guaranteed by this Constitution are not dependent on those guaranteed by

the United States Constitution.’ Proposition 115 would add the important proviso

that ‘In criminal cases the right of a defendant to equal protection of the laws, to

due process of law, to the assistance of counsel, to be personally present with

counsel, to a speedy and public trial, to compel the attendance of witnesses, to

confront the witnesses against him or her, to be free from unreasonable searches

and seizures, to privacy, to not be compelled to be a witness against himself or

herself, to not be placed twice in jeopardy for the same offense, and not to suffer

the imposition of cruel or unusual punishment, shall be construed by the courts of

this state in a manner consistent with the Constitution of the United States. This

77

Constitution shall not be construed by the courts to afford greater rights to

criminal defendants than those afforded by the Constitution of the United States,

nor shall it be construed to afford greater rights to minors in juvenile proceedings

on criminal causes than those afforded by the Constitution of the United States.’ ”

(52 Cal.3d at p. 350.)

After explaining there was a dispute between the parties concerning the

proper interpretation of the language added by Proposition 115, with the

petitioners contending that the measure would impact not only the specifically

listed rights but other rights such as the right to jury trial and free speech, and the

Attorney General arguing that the last sentence of the new measure “must be read

as referring only to the enumerated rights mentioned in the immediately preceding

sentence” (Raven, supra, 52 Cal.3d at p. 351), the court determined that there was

no need to resolve that dispute, “for even if we adopt [the Attorney General’s]

position, in our view the effect of the measure would be so far reaching as to

amount to a constitutional revision beyond the scope of the initiative process.”

(Ibid.)

In explaining the basis for its conclusion, the court in Raven discussed both

the quantitative and qualitative effects of Proposition 115. The court concluded

that “[q]uantitatively, Proposition 115 does not seem ‘so extensive . . . as to

change directly the “substantial entirety” of the Constitution by the deletion or

alteration of numerous existing provisions . . . .’ [Citation.] The measure deletes

no existing constitutional language and it affects only one constitutional article,

namely, article I. As previously outlined, the measure adds three new sections to

this article and amends a fourth section. In short, the quantitative effects on the

Constitution seem no more extensive than those presented in prior cases upholding

initiative measures challenged as constitutional revisions.” (Raven, supra, 52

Cal.3d at p. 351.)

78

With respect to the qualitative effects of Proposition 115, the court in

Raven explained: “We have stated that, apart from a measure effecting widespread

deletions, additions and amendments involving many constitutional articles, ‘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 . . . . [A]n

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.’

[Citations.] [¶] 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, first and third italics in Raven.)

In elaborating upon why this provision constituted a far reaching change in

the nature of our state’s basic governmental plan, the court in Raven observed that

“new article I, section 24, would substantially alter the substance and integrity of

the state Constitution as a document of independent force and effect. As an

historical matter, article I and its Declaration of Rights was viewed as the only

available protection for our citizens charged with crimes, because the federal

Constitution and its Bill of Rights was initially deemed to apply only to the

conduct of the federal government. In framing the Declaration of Rights in both

the 1849 and 1879 California Constitutions, the drafters largely looked to the

constitutions of the other states, rather than the federal Constitution, as potential

models. [Citations.] [¶] Thus, Proposition 115 not only unduly restricts judicial

power, but it does so in a way which severely limits the independent force and

effect of the California Constitution.” (Raven, supra, 52 Cal.3d at pp. 352-353.)

“Proposition 115 . . . substantially alters the preexisting constitutional scheme or

79

framework heretofore extensively and repeatedly used by courts in interpreting

and enforcing state constitutional protections. It directly contradicts the well-

established judicial principle that, ‘The judiciary, from the very nature of its

powers and means given it by the Constitution, must possess the right to construe

the Constitution in the last resort . . . .’ [Citations.] In short, in the words of

Amador, supra, this ‘relatively simple enactment [accomplishes] . . . such far

reaching changes in the nature of our basic governmental plan as to amount to a

revision . . . .’ [Citations.]” (Id. at pp. 354-355.)

In the course of its discussion, the court in Raven contrasted the proposed

change to article I, section 24, with the substantial changes in the state

constitutional rights of criminal defendants that the court previously had found to

constitute constitutional amendments in Frierson, supra, 25 Cal.3d 142, and in

Lance W., supra, 37 Cal.3d 873 ― respectively, the measure that reinstated the

death penalty and the measure that abrogated the state constitutional exclusionary

rule for evidence obtained through an unconstitutional search and seizure. Raven

explained that “the isolated provisions at issue [in Frierson and Lance W.]

achieved no far reaching, fundamental changes in our governmental plan. . . .

[N]either case involved a broad attack on state court authority to exercise

independent judgment in construing a wide spectrum of important rights under the

state Constitution. New article I, section 24, more closely resembles Amador’s

hypothetical provision vesting all judicial power in the Legislature . . . . As noted,

in practical effect, the new provision vests a critical portion of state judicial power

in the United States Supreme Court, certainly a fundamental change in our

preexisting governmental plan.” (Raven, supra, 52 Cal.3d at p. 355.)

After concluding that the changes made by Proposition 115 to article I,

section 24, constituted an invalid revision of the California Constitution, the court

in Raven determined that this provision’s invalidity “does not affect the remaining

80

provisions of Proposition 115, which are clearly severable from the invalid

portion.” (Raven, supra, 52 Cal.3d at p. 355.) Accordingly, although the court

held that the proposed addition to article I, section 24, could not become a part of

the California Constitution, it at the same time concluded that the other numerous

substantive changes to that Constitution contained in Proposition 115 would

remain in effect. (52 Cal.3d at pp. 355-356.)

6

One year after Raven, supra, 52 Cal.3d 336, our court, in the case of

Legislature v. Eu (1991) 54 Cal.3d 492, faced a multipronged constitutional

challenge to Proposition 140, an initiative measure that — in order to limit the

“power of incumbency” in the legislative branch — added and altered a number of

separate constitutional provisions so as to (1) adopt term limits, (2) restrict

retirement benefits for state legislators, and (3) limit expenditures for legislative

staff and support services. In that case, the initial contention raised by the

petitioners and addressed by the court was the claim that Proposition 140 as a

whole, “and particularly its term and budgetary limitations on the Legislature,

effected a constitutional revision rather than a mere amendment.” (54 Cal.3d at

p. 506.)

In advancing this argument, the petitioners in Legislature v. Eu asserted

that the effect of the term and budget limitations of Proposition 140 on the

Legislature were as drastic as the provisions that our court had found invalid in

Raven. The petitioners maintained that those limits would so weaken the

Legislature that it would “ ‘be unable to discharge its traditional duties of

policymaker, keeper of the purse, and counterweight to the executive branch in the

way the Constitution demands. The result is a change so profound in the structure

of our government that it constitutes a revision . . . .’ ” (Legislature v. Eu, supra,

54 Cal.3d at p. 507.)

81

The court in Legislature v. Eu, supra, 54 Cal.3d 492, rejected the

petitioners’ argument, pointing out that “the basic and fundamental structure of the

Legislature as a representative branch of government is left substantially

unchanged by Proposition 140. Term and budgetary limitations may affect and

alter the particular legislators and staff who participate in the legislative process,

but the process itself should remain essentially as previously contemplated by our

Constitution. This aspect distinguishes the present case from Raven, in which we

struck down a provision that would have fundamentally changed and subordinated

the constitutional role assumed by the judiciary in the governmental process.

[Citation.] [¶] As indicated in Raven, a qualitative revision includes one that

involves a change in the basic plan of California government, i.e., a change in its

fundamental structure or the foundational powers of its branches.” (54 Cal.3d at

pp. 508-509, italics added; see also id. at p. 506 [“[T]he 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” (italics added)].)

Although noting that differences of opinion had been voiced regarding how

the term and budgetary limits actually would affect the operation of the

Legislature in practice, the court in Legislature v. Eu explained that “[o]ur prior

decisions have made it clear that to find such a revision, 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.” (Legislature v. Eu, supra, 54 Cal.3d at p. 510, italics added.) We

pointed out that “Proposition 140 on its face does not affect either the structure or

the foundational powers of the Legislature. . . . No legislative power is diminished

or delegated to other persons or agencies. The relationships between the

82

governmental branches, and their respective powers, remain untouched.” (Id. at

p. 509.)

Accordingly, we concluded in Legislature v. Eu, supra, 54 Cal.3d 492, that

the changes embodied in Proposition 140 did not amount to a constitutional

revision, but rather that the measure embodied a constitutional amendment that

validly could be proposed and adopted through the initiative process.

7

Most recently, in Professional Engineers in California Government v.

Kempton (2007) 40 Cal.4th 1016 (Professional Engineers), we addressed a

contention that Proposition 35, an initiative measure that added article XXII to the

state Constitution relating to the contracting out of architectural and engineering

services for public works, amounted to a constitutional revision. In that case, the

challengers contended that “ ‘[t]aking away the Legislature’s plenary power to

determine contracting out policies and procedures for the State of California, and

shifting that power to the Executive branch, constitutes a fundamental

restructuring of our traditional tripartite system of government.’ ” (40 Cal.4th at

p. 1047.) In rejecting this contention, our decision in Professional Engineers

pointed out that the challengers’ claim rested on their erroneous characterization

of the effects of Proposition 35, and emphasized that the measure “does not usurp

the Legislature’s plenary authority to regulate private contracting by public

agencies in a global sense, but simply permits public agencies to enter into

contracts with private entities for architectural and engineering services without

article-VII-derived restrictions [that is, civil service restrictions] on their ability to

do so.” (40 Cal.4th at p. 1047.) Furthermore, we noted that “this is not a case in

which the Legislature has been stripped of authority to regulate private contracting

but, rather, a case in which a permissible legislative decision has been made [by

the electorate] to remove previous limitations on the ability of public agencies to

83

contract for architectural and engineering services.” (Ibid.) Accordingly, we

concluded in Professional Engineers that Proposition 35 did not create “such ‘far

reaching changes [to] our basic governmental plan as to amount to a revision.’ ”

(40 Cal.4th at p. 1047.)

J

Having extensively reviewed (1) the origin and history of the distinction

drawn in the California Constitution between constitutional amendments and

constitutional revisions throughout our state’s existence (ante, at pp. 43-64), and

(2) the numerous decisions that have applied this distinction to a wide variety of

measures that have added or altered provisions of our state Constitution (ante, at

pp. 64-84), we now evaluate petitioners’ contention that the measure before us

today — the current Proposition 8 — should be considered a constitutional

revision rather than a constitutional amendment.

As already noted, Proposition 8 adds a single section — section 7.5 — to

article I of the California Constitution, a section that provides, in its entirety, that

“Only marriage between a man and a woman is valid or recognized in California.”

Pursuant to the analysis prescribed in our past decisions, we examine “both the

quantitative and qualitative effects of the measure on our constitutional scheme.”

(Raven, supra, 52 Cal.3d 336, 350.)

From a quantitative standpoint, it is obvious that Proposition 8 does not

amount to a constitutional revision. The measure adds one 14-word section (§ 7.5)

to article I — a section that affects two other sections of article I (§§ 1, 7) by

creating an exception to the privacy, due process, and equal protection clauses

contained in those two sections as interpreted in the majority opinion in the

Marriage Cases, supra, 43 Cal.4th 757. Quantitatively, Proposition 8

unquestionably has much less of an effect on the preexisting state constitutional

scheme than virtually any of the previous constitutional changes that our past

84

decisions have found to constitute amendments rather than revisions. Indeed,

petitioners do not even advance the argument that Proposition 8 constitutes a

revision under the quantitative prong of the amendment/revision analysis.

Instead, petitioners rest their claim that Proposition 8 constitutes a

constitutional revision solely upon the qualitative prong of the

amendment/revision analysis. The constitutional change embodied in Proposition

8, however, differs fundamentally from those that our past cases have identified as

the kind of qualitative change that may amount to a revision of the California

Constitution.

As we have seen, the numerous past decisions of this court that have

addressed this issue all have indicated that the type of measure that may constitute

a revision of the California Constitution is one that makes “far reaching changes in

the nature of our basic governmental plan” (Amador, supra, 22 Cal.3d 208, 223,

italics added), or, stated in slightly different terms, that “substantially alter[s] the

basic governmental framework set forth in our Constitution.” (Legislature v. Eu,

supra, 54 Cal.3d 492, 510, italics added.) Thus, for example, our decision in

Amador, in providing an example of the type of “relatively simple enactment” that

may constitute a revision, posed a hypothetical enactment “which purported to

vest all judicial power in the Legislature.” (Amador, supra, 22 Cal.3d at p. 223,

italics added.) Similarly, in Raven — the only case to find that a measure

constituted a revision of the California Constitution because of the qualitative

nature of the proposed change — the court relied upon the circumstance that the

provision there at issue “would substantially alter the substance and integrity of

the state Constitution as a document of independent force and effect” (Raven,

supra, 52 Cal.3d at p. 352) by implementing “a broad attack on state court

authority to exercise independent judgment in construing a wide spectrum of

important rights under the state Constitution.” (Id., at p. 355.) (See also

85

Brosnahan, supra, 32 Cal.3d at p. 261 [“[N]othing contained in [the 1982]

Proposition 8 necessarily or inevitably will alter the basic governmental

framework set forth in our Constitution. It follows that [the 1982] Proposition 8

did not accomplish a ‘revision’ of the Constitution within the meaning of article

XVIII” (italics added)]; In re Lance W., supra, 37 Cal.3d at p. 892 [“The adoption

of section 28(d) which affects only one incident of [the state constitutional]

guarantee of freedom from unlawful search and seizure . . . 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 within the contemplation of article XVIII” (italics

added)]; Legislature v. Eu, supra, 54 Cal.3d at p. 509 [“a qualitative revision

includes one that involves a change in the basic plan of California government,

i.e., a change in its fundamental structure or the foundational powers of its

branches” (italics added)]; Professional Engineers, supra, 40 Cal.4th at p. 1047

[“we cannot agree that Proposition 35 creates such ‘far reaching changes [to] our

basic governmental plan as to amount to a revision’ ” (italics added)].)

Proposition 8 works no such 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.” (Legislature v. Eu, supra, 54 Cal.3d at

p. 509.) Instead, Proposition 8 simply changes the substantive content of a state

constitutional rule in one specific subject area — the rule relating to access to the

designation of “marriage.” Contrary to petitioners’ contention, the measure does

not transform or undermine the judicial function: California courts will continue

to exercise their basic and historic responsibility to enforce all of the provisions of

the California Constitution, which now include the new section added by the

voters’ approval of Proposition 8.

86



Petitioners contend, however, that even if Proposition 8 does not make a

fundamental change in the basic governmental plan or framework established by

the Constitution, the measure nonetheless should be found to constitute a revision

because it allegedly “strike[s] directly at the foundational constitutional principle

of equal protection . . . by establishing that an unpopular group may be selectively

stripped of fundamental rights by a simple majority of voters.” Petitioners’

argument rests, initially, on the premise that a measure that abrogates a so-called

foundational constitutional principle of law, no less than a measure that makes a

fundamental change in the basic governmental structure or in the foundational

power of its branches as established by the state Constitution, should be viewed as

a constitutional revision rather than as a constitutional amendment. Petitioners

suggest that their position is not inconsistent with our past amendment/revision

decisions, on the theory that none of those 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. The concurring opinion of

Justice Werdegar and the concurring and dissenting opinion of Justice Moreno

embrace petitioners’ proposed interpretation of the relevant California precedent.

(See conc. opn. of Werdegar, J., post, at pp. 2-8; conc. & dis. opn. of Moreno, J.,

post, at pp. 12-20.)

In our view, a fair and full reading of this court’s past amendment/revision

decisions 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. As we have seen,

a number of our past amendment/revision decisions have involved initiative

measures that made very important substantive changes in fundamental state

constitutional principles such as the right not to be subjected to cruel or unusual

87

punishment (Frierson, supra, 25 Cal.3d 142) and the right to be protected against

unlawful searches and seizures (Lance W., supra, 37 Cal.3d 873) — initiative

measures that, like the current Proposition 8, cut back on the greater level of

protection afforded by preceding court decisions and were challenged as

constitutional revisions on the ground that the constitutional changes they effected

deprived individuals of important state constitutional protections they previously

enjoyed and left courts unable to fully protect such rights. Nonetheless, in each

case this court did not undertake an evaluation of the relative importance of the

constitutional right at issue or the degree to which the protection of that right had

been diminished, but instead held that the measure did not amount to a qualitative

revision because it did not make a fundamental change in the nature of the

governmental plan or framework established by the Constitution.

In Frierson, supra, 25 Cal.3d 142, for example, the defendant argued that

because the constitutional measure at issue in that case — by providing that the

death penalty was to be deemed not to contravene either the cruel or unusual

punishment clause or any other provision of the California Constitution — totally

removed the state’s imposition of the death penalty “from a carefully built state

constitutional structure,” the provision resulted in “ ‘a significant change in a

principle underlying our system of democratic government and can only be

accomplished by constitutional revision.’ ” (25 Cal.3d at p. 186, italics added.) In

rejecting this argument, the opinion in Frierson explained that the measure did not

make a far reaching or sweeping change in the nature of our basic governmental

plan, because the judiciary retained its traditional “broad powers of judicial review

of death sentences to assure that each sentence has been properly and legally

imposed and to safeguard against arbitrary or disproportionate treatment.” (Id. at

p. 187.) In other words, the court concluded that the measure did not significantly

88

alter the basic structure or foundational powers of any branch of state government,

including the judiciary.

The court’s analysis in Lance W., supra, 37 Cal.3d 873, was even more

explicit in this regard in rejecting the defendant’s claim that a measure that

abolished the state constitutional exclusionary rule for evidence obtained by

unlawful search and seizure constituted a constitutional revision. The court there

concluded that the measure “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 within the contemplation

of article XVIII.” (Lance W., 37 Cal.3d at p. 892, italics added.)

Furthermore, as we have seen, in Legislature v. Eu, supra, 54 Cal.3d 492,

in explicating the phrase “a change in the basic plan of California government” as

used in the earlier California amendment/revision line of cases, we explained that

this phrase refers to “a change in [the] fundamental [governmental] structure or

the foundational powers of its branches” (id. at p. 509, italics added) and not, as

petitioners suggest, simply to any change in an important constitutional right or

principle.

Although petitioners seize upon isolated passages in a few decisions as

assertedly supporting their position that a change other than a modification in the

governmental plan or framework may constitute a revision,22 a fair reading of


22

Thus, for example, petitioners rely upon the circumstance that at one point

the opinion in Legislature v. Eu, supra, 54 Cal.3d 492, 509, states that “[a]s
indicated in Raven, a qualitative revision includes one that involves a change in
the basic plan of California government, i.e., a change in its fundamental structure
or the foundational powers of its branches.” (Italics added.) Petitioners suggest
that this use of the word “includes” — instead of “is” — signifies that the decision
contemplated that other types of changes could constitute a qualitative revision.
(Justice Werdegar’s concurring opinion (post, at p. 2) advances a similar

(footnote continued on next page)

89

those decisions in their entirety discloses that they do not provide such support but

instead affirmatively reiterate and apply the established rule that, in order to

constitute a qualitative revision, a constitutional measure must make a far reaching

change in the fundamental governmental structure or the foundational power of its

branches as set forth in the Constitution. Under this standard, which has been


(footnote continued from previous page)

argument.) Read as a whole, however, it is clear that Legislature v. Eu provides
no support for this proposition, and instead expressly follows the holdings of past
decisions in concluding that “to find such a revision, 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
.” (54 Cal.3d at p. 510, italics added and omitted.)


Similarly, petitioners point to a passage in Raven, supra, 52 Cal.3d 336,

354, in which the court noted that Proposition 115’s proposed modification of
article I, section 24 “directly contradicts [a] well-established jurisprudential
principle,” as ostensibly supporting the conclusion that a proposed change to the
California Constitution can amount to a constitutional revision whenever it
contradicts a “well-established jurisprudential principle.” In context, however, the
passage in question does not support petitioners’ reading. The sentence in Raven
reads in full: “[The change in article I, section 24] directly contradicts the well-
established jurisprudential principle that, ‘The judiciary, from the very nature of
its powers and means given it by the Constitution, must possess the right to
construe the Constitution in the last resort . . . .’ ” Because the new section
contradicted the very nature of the state judiciary’s power, the court in Raven
found that “[n]ew article I, section 24, more closely resembles Amador’s
hypothetical provision vesting all judicial power in the Legislature — a provision
we deemed would achieve a constitutional revision. As noted, in practical effect,
the new provision vests a critical portion of state judicial power in the United
States Supreme Court, certainly a fundamental change in our preexisting
governmental plan
.” (52 Cal.3d at p. 355, italics added.) In the course of its
analysis, Raven explicitly distinguished the challenged provisions of article I,
section 24, from the discrete restrictions on state constitutional protections that had
been found not to constitute constitutional revisions in Frierson, supra, 25 Cal.3d
142, and Lance W., supra, 37 Cal.3d 873, thus refuting petitioners’ suggestion that
under Raven any measure that makes a change in an “underlying constitutional
principle” may constitute a revision.

90

applied repeatedly and uniformly in the precedents that govern this court’s

jurisprudence, it is evident that because Proposition 8 works no change of that

nature in the California Constitution, it does not constitute a constitutional

revision.23

Furthermore, even if, as petitioners urge, our past decisions were to be

interpreted as not precluding the possibility that a constitutional change other than

a change in the governmental plan or framework could, under some

circumstances, constitute a constitutional revision rather than a constitutional

amendment, petitioners’ contention that Proposition 8 represents a constitutional

revision still would lack merit. 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.” (Amador, supra, 22

Cal.3d at p. 223.) It is only a qualitative change of that kind of far reaching scope

23

Notwithstanding its rhetorical flourishes, Justice Werdegar’s concurring

opinion cannot escape the circumstance that there is no judicial authority to
support its proposed reading of our past decisions addressing the distinction
between constitutional amendments and constitutional revisions. As we have
explained, the standard for determining whether an alteration of the California
Constitution amounts to a constitutional revision within the meaning of article
XVIII has been repeated and applied in all of the numerous recent California
decisions addressing the amendment/revision issue; and a leading state
constitutional treatise confirms, in discussing the meaning of the term “revision”
as analyzed in our past decisions, “[t]he test is whether it appears ‘necessarily or
inevitably . . . from the face of the challenged provision that the measure will
substantially alter the basic governmental framework set forth in our Constitution’
. . . .” (Cal. Constitution Reference Guide, supra, p. 304 [quoting Legislature v.
Eu
, supra, 54 Cal.3d 492, 510].) Justice Werdegar’s concurring opinion does not
accurately describe the governing California case law in this area.

91

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.

To begin with, although petitioners describe Proposition 8 as “eliminating”

or “stripping” same-sex couples of a fundamental constitutional right, as we have

explained above that description drastically overstates the effect of Proposition 8

on the fundamental state constitutional rights of same-sex couples. As

demonstrated, Proposition 8 does not eliminate the substantial substantive

protections afforded to same-sex couples by the state constitutional rights of

privacy and due process as interpreted in the majority opinion in the Marriage

Cases, supra, 43 Cal.4th 757. Rather, same-sex couples continue to enjoy the

same substantive core benefits afforded by those state constitutional rights as those

enjoyed by opposite-sex couples — including the constitutional right to enter into

an officially recognized and protected family relationship with the person of one’s

choice and to raise children in that family if the couple so chooses — with the

sole, albeit significant, exception that the designation of “marriage” is, by virtue of

the new state constitutional provision, now reserved for opposite-sex couples.

Similarly, Proposition 8 does not by any means “repeal” or “strip” gay individuals

or same-sex couples of the very significant substantive protections afforded by the

state equal protection clause either with regard to the fundamental rights of

privacy and due process or in any other area, again with the sole exception of

access to the designation of “marriage” to describe their relationship. Thus, except

with respect to the designation of “marriage,” any measure that treats individuals

or couples differently on the basis of their sexual orientation continues to be

92

constitutionally “suspect” under the state equal protection clause and may be

upheld only if the measure satisfies the very stringent strict-scrutiny standard of

review that also applies to measures that discriminate on the basis of race, gender,

or religion. Because Proposition 8 has only this limited effect on the fundamental

rights of privacy and due process and the guarantee of equal protection of the laws

under the state Constitution as interpreted by the majority opinion in the Marriage

Cases, supra, 43 Cal.4th 757, 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

(cf. Romer v. Evans (1996) 517 U.S. 620), would constitute a constitutional

revision under the provisions of the California Constitution. A narrowly drawn

exception to a generally applicable constitutional principle does not amount to a

constitutional revision within the meaning of article XVIII of the California

Constitution.

In explaining and relying upon the circumstance that Proposition 8

exclusively affects access to the designation of “marriage” and leaves intact all of

the other very significant constitutional protections afforded same-sex couples

under the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757, we

emphasize that we are not in any way suggesting that the change embodied in

Proposition 8 is unimportant or insignificant. In considering the

amendment/revision distinction embodied in the California Constitution, however,

it is crucial to understand that the amendment process never has been reserved

only for minor or unimportant changes to the state Constitution. In this regard, it

is useful to keep in mind that (1) the right of women to vote in California, (2) the

initiative, referendum, and recall powers, (3) the reinstatement of the death

penalty, (4) an explicit right of privacy, (5) a substantial modification of the

93

statewide real property tax system, and (6) legislative term limits — to list only a

very few examples — all became part of the California Constitution by

constitutional amendment, not by constitutional revision.24 Thus, it is clear that

the distinction drawn by the California Constitution between an amendment and a

revision does not turn on the relative importance of the measure but rather upon

the measure’s scope: as we have explained, only if a measure embodies a

constitutional change that is so far reaching and extensive that the framers of the

1849 and 1879 Constitutions would have intended that the type of change could be

proposed only by a constitutional convention, and not by the normal amendment

process, can the measure properly be characterized as a constitutional revision

rather than as a constitutional amendment. In light of the discrete subject area

affected by Proposition 8, and (as we have explained) the limited effect of the

measure on that subject area, we conclude that Proposition 8 cannot plausibly be

characterized as a constitutional revision.

Petitioners advance a number of additional arguments in support of their

claim that Proposition 8 should be considered a constitutional revision, but none of


24

The right of women to vote in California was adopted by amendment at the

November 10, 1911 election. (See Cal. Const., former art. II, § 1 [as amended in
1911].) The initiative, referendum, and recall powers also were adopted by
amendments approved at that same 1911 election. (See Cal. Const., former art.
IV, § 1 [as amended in 1911].) The death penalty was reinstated as a valid
punishment under the California Constitution by an amendment adopted at the
November 7, 1972 election. (See Cal. Const., art. I, § 27.) An explicit right of
privacy also was added to the California Constitution by an amendment adopted at
the 1972 general election. (Cal. Const., art. I, § 1.) The statewide system of real
property taxation was modified by the adoption of Proposition 13 as a
constitutional amendment at the June 6, 1978 election. (Cal. Const., art. XIII A,
§§ 1-4.) And legislative term limits were instituted by the adoption of Proposition
140 as a constitutional amendment at the November 6, 1990 election. (Cal.
Const., art. IV, §§ 1.5, 2.)

94

these arguments withstands analysis. First, petitioners contend that Proposition 8

represents an “unprecedented” instance in which a majority of voters have altered

the California Constitution so as to diminish the constitutional rights of a minority

group; petitioners assert that because such alteration is contrary to the “counter-

majoritarian” purpose served by constitutional provisions, such a change has not

and cannot be effected by a constitutional amendment. Contrary to petitioners’

contention, however, 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.

Thus, for example, two prominent initiative measures, adopted by majority

vote, added provisions to the California Constitution modifying the protections

that the Constitution otherwise would afford to groups that historically have been

the subject of prejudice and discrimination: Proposition 14 (a state constitutional

amendment, adopted in 1964, that repealed a statutory provision barring racial

discrimination in the sale or rental of housing) and Proposition 209 (a state

constitutional amendment, adopted in 1996, that prohibits — in public

employment, public education, and public contracting — certain types of

affirmative action aimed at overcoming the continuing effects of past societal

discrimination against racial minorities and women).25 Although Proposition 14

subsequently was held invalid under the federal Constitution (Mulkey v. Reitman


25

In Hi-Voltage Wire Works, Inc. v. City of San Jose (2000) 24 Cal.4th 537,

557-558, this court recognized that Proposition 209 changed the state
constitutional standard reflected in our earlier decisions in Price v. Civil Service
Com.
(1980) 26 Cal.3d 257, 284-285, and DeRonde v. Regents of University of
California
(1981) 28 Cal.3d 875, 890, which had upheld the validity of the type of
affirmative-action programs that the new constitutional provision now bars.

95

(1966) 64 Cal.2d 529, affd. sub nom. Reitman v. Mulkey (1967) 387 U.S. 369),

neither that measure nor Proposition 209 was found to constitute an impermissible

constitutional revision under the state Constitution. Indeed, although vigorous

legal challenges were waged against each of these measures (see Mulkey, supra,

64 Cal.2d at pp. 535-543 [Prop. 14]; Coalition for Economic Equity v. Wilson (9th

Cir. 1997) 122 F.3d 692 [rejecting federal equal protection challenge to Prop.

209], revg. (N.D.Cal. 1996) 946 F.Supp. 1480), the circumstance that in neither

case did the challengers even argue that the measure at issue should be

characterized as a constitutional revision rather than as a constitutional amendment

affords a realistic indication of the weakness and unprecedented nature of

petitioners’ present claim.26

Similarly, there also have been a number of instances in which a

constitutional amendment (rather than a constitutional revision) diminishing the

state constitutional rights of a minority group has been proposed by the Legislature

and ratified by a majority vote of the electorate. One such example is the 1979

constitutional amendment that added a proviso to the state equal protection clause

in response to a decision of this court authorizing California courts to impose the

busing of students as a remedy for de facto school segregation. (See Crawford v.

Board of Education (1976) 17 Cal.3d 280, 310.) This amendment, which carves

out an exception to the state equal protection clause and remains part of article I,

section 7, subdivision (a) of the California Constitution, states in part that “nothing

contained herein or elsewhere in this Constitution imposes upon the State of

26

Although at one point the court in Mulkey v. Reitman stated that “we do not

find it necessary to discuss claims of the unconstitutionality of [Proposition 14]
based on California constitutional provisions and law” (Mulkey v. Reitman, supra,
64 Cal.2d at p. 533), our review of the briefs filed in this court reveals that no state
constitutional challenge to Proposition 14 was raised in that case.

96

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.” Although a vigorous constitutional

challenge under the federal Constitution was leveled against this amendment, no

claim was raised that the measure was mislabeled as a constitutional amendment

but actually constituted a constitutional revision under California law. (See

Crawford v. Los Angeles Board of Education (1980) 113 Cal.App.3d 633, 650-657

& fn. 5, affd. 458 U.S. 527 [discussing single-subject and other state law

objections to the measure, as well as a federal constitutional claim]; Tinsley v.

Superior Court (1983) 150 Cal.App.3d 90, 105-109 [discussing single-subject and

other state law objections to the measure].)

An additional, quite dramatic example of a constitutional amendment,

proposed by the Legislature and adopted by a majority of voters, which

diminished the state constitutional rights of a disfavored minority group, is the

1894 amendment to the California Constitution that entirely withdrew the right to

vote from all persons not literate in the English language. (Cal. Const., former art.

II, § 1 [as amended at Nov. 6, 1894 election].) This provision of the California

Constitution remained in effect until 1970, when this court struck it down as a

violation of the federal Constitution. (See Castro v. State of California (1970) 2

Cal.3d 223, 232-243; id. at pp. 230-232 [discussing history of the 1894

amendment and concluding that “[i]t is obvious that fear and hatred played a

significant role in the passage of the literacy requirement”].) As with the

challenges to each of the other constitutional amendments that have diminished

state constitutional rights of minority groups since the time the 1894 measure was

adopted, no claim was made that the addition of the voter literacy requirement

represented a constitutional revision. This is so despite the circumstance that the

97

amendment was put before the voters in 1894, the very same year as this court’s

decision in Livermore, supra, 102 Cal. 113, in which the court for the first time

discussed the distinction drawn under the 1879 Constitution between

constitutional amendments and constitutional revisions and emphasized that the

Legislature was not authorized to propose a constitutional revision. The

successful challenge to the English-language literacy provision that was brought

almost 75 years after its adoption included no claim or suggestion that its adoption

had been fundamentally flawed from the outset because the measure was proposed

and adopted as a constitutional amendment rather than as a constitutional revision.

In addition to the foregoing examples of past state constitutional

amendments that diminished state constitutional rights of racial and ethnic

minorities and women (refuting petitioners’ description of Proposition 8 as

“unprecedented” in this regard), there are numerous constitutional amendments —

the subjects of decisions previously discussed in this opinion — that diminished

many state constitutional rights of criminal defendants, further belying petitioners’

assertion that Proposition 8 represents a unique instance in which a majority of

California voters, by the approval of a constitutional amendment, have modified

state constitutional provisions intended to serve a countermajoritarian function.

As past California cases have recognized, the numerous constitutional guarantees

afforded to defendants in criminal proceedings by all of the provisions included in

our state constitutional Declaration of Rights are intended to shield such

individuals from overreaching actions by the state (through statutory enactments

or executive conduct) that at times may be approved by a current majority of the

populace. (See, e.g., Anderson, supra, 6 Cal.3d 628, 634-640 [setting forth the

history of the state constitutional prohibition on the infliction of cruel or unusual

punishment and concluding that this clause, “like other provisions of the

Declaration of Rights, operates to restrain legislative and executive action and to

98

protect individual and minority rights against encroachment by the majority” (id.

at p. 640, italics added)].)

Under the California Constitution, the constitutional guarantees afforded to

individuals accused of criminal conduct are no less well established or

fundamental than the constitutional rights of privacy and due process or the

guarantee of equal protection of the laws. (See, e.g., Miller v. Superior Court

(1999) 21 Cal.4th 883, 892 [distinct provisions of the Cal. Const. “have equal

dignity as constituents of the state Constitution”].) As we have seen, in past years

a majority of voters have adopted several state constitutional amendments — for

example, the measure reinstating the death penalty, and the multitude of

constitutional changes contained in the 1982 Proposition 8 and in Proposition

115 — that have diminished state constitutional rights of criminal defendants, as

those rights had been interpreted in prior decisions of this court. Although a

principal purpose of all constitutional provisions establishing individual rights is

to serve as a countermajoritarian check on potential actions that may be taken by

the legislative or executive branches (see, e.g., Bickel, The Least Dangerous

Branch (2d ed. 1986) pp. 16-23; Choper, Judicial Review and the National

Political Process (1980) pp. 60-128), our prior decisions — reviewed at length

above — establish that the scope and substance of an existing state constitutional

individual right, as interpreted by this court, may be modified and diminished by a

change in the state Constitution itself, effectuated through a constitutional

amendment approved by a majority of the electors acting pursuant to the initiative

power.

As is demonstrated by the foregoing discussion, and contrary to petitioners’

claim that a determination that Proposition 8 constitutes a constitutional

amendment would represent a dramatic change in existing state constitutional

principles, it is petitioners’ proposal that radically would alter the long and firmly

99

established understanding of the amendment/revision distinction embodied in the

California Constitution. In basing their argument entirely on the circumstance that

Proposition 8 has the effect of diminishing one aspect of a fundamental right of a

group that this court has determined properly should be considered a “suspect

class” for purposes of the state constitutional equal protection clause, petitioners in

essence ask this court to read into the amendment/revision distinction embodied in

the California Constitution a number of the distinctive elements of the state

constitutional equal protection jurisprudence that have been developed and

applied by this court in recent years. As we have seen, however, neither the

history of the amendment/revision distinction in the California Constitution since

its inception in 1849, nor the numerous cases that have applied that distinction,

provide support or justification for such a radical transformation of the meaning

and scope of the amendment/revision dichotomy.

That petitioners’ proposal would mark a sharp departure from this court’s

past understanding of the amendment/revision dichotomy is further demonstrated

by the circumstance that 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. Thus, for example, had this court

rejected the constitutional challenges to the existing marriage statutes in its

decision in the Marriage Cases, supra, 43 Cal.4th 757, and had the people

responded by adopting an initiative measure amending the privacy, due process,

and equal protection provisions of the state Constitution to guarantee same-sex

couples equal access to the designation of marriage, that measure would be

viewed as a constitutional amendment that properly could be adopted through the

initiative process. But if an initiative measure thereafter was proposed to repeal

100

those recently adopted changes to the state Constitution, that measure, under

petitioners’ approach, would be designated a constitutional revision, and the

people would be powerless to adopt that change through the initiative process.

Again, neither the history of the provisions governing the making of changes to

the California Constitution, nor the many past cases interpreting and applying

those provisions, support petitioners’ assertion that the amendment/revision

distinction properly should be understood as establishing such a “one-way street”

or as mandating such a seemingly anomalous result.

In a somewhat related vein, petitioners additionally maintain that

Proposition 8 cannot be viewed as a constitutional amendment rather than as a

revision because, should this court so hold, there would be nothing to prevent a

majority of California voters from adopting future measures designed to carve out

still more exceptions to other fundamental rights, leading to a situation in which

the state constitutional rights of any and all disfavored minority groups could be

entirely obliterated. The “slippery slope” mode of analysis reflected in this

argument, however, finds no support in any of the numerous prior California

decisions that have considered the question whether other proposed constitutional

changes constituted a constitutional amendment or a constitutional revision.

For example, in Frierson, supra, 25 Cal.3d 142, our court was faced with

the question whether an initiative measure that added a constitutional provision

permitting the imposition of the death penalty in California, notwithstanding a

recent decision of this court holding that capital punishment violated the state

constitutional prohibition on cruel or unusual punishment, constituted a

constitutional amendment or a constitutional revision. In addressing that question,

we did not approach the issue by considering whether, if that initiative were to be

upheld as a permissible amendment, other measures conceivably could be adopted

in the future excluding torture or drawing and quartering from the reach of the

101

state cruel or unusual punishment clause, or, indeed, whether other amendments

thereafter could be approved that gradually reduced and eliminated all of the other

fundamental rights encompassed in article I of the California Constitution.

Instead, we examined only the actual constitutional provision that was before us in

that case to determine whether that measure constituted an amendment or a

revision to the Constitution.

Similarly, as we have explained, in Amador, supra, 22 Cal.3d 208,

Brosnahan, supra, 32 Cal.3d 236, and Legislature v. Eu, supra, 54 Cal.3d 492, we

rejected challenges to the measures at issue in those cases that were based on

speculation regarding potential future consequences, emphasizing in Legislature v.

Eu that “[o]ur prior decisions have made it clear that to find such a revision, 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.” (54 Cal.3d at p. 510, original italics.) Indeed, all of our

cases in this area have followed the approach set forth more than 60 years ago in

our decision in McFadden, supra, 32 Cal.2d 330, 348: “Each situation involving

the question of amendment, as contrasted with revision, of the Constitution must

. . . be resolved upon its own facts.” (Italics added.)

Speculation regarding a potential “parade of horrible amendments” that

might be adopted in the future rests upon the dubious factual premise of a highly

unrealistic scenario of future events. Resort to such a speculative approach

plausibly could provide a basis for a court to conclude that virtually any future

proposed constitutional change constitutes a constitutional revision because the

change proposed could be followed by a series of comparable changes in other

areas that fundamentally would alter the constitutional landscape. As we have

explained, the past decisions of this court are irreconcilable with the mode of

analysis suggested by petitioners. (See also Raven, supra, 52 Cal.3d 336, 355

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[contrasting a proposed change to art. I, § 24, involving a “wide spectrum” of state

constitutional rights, with the “isolated provisions” at issue in Frierson, supra, 25

Cal.3d 142, and Lance W., supra, 37 Cal.3d 873].)

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.’ ” (Raven, supra,

52 Cal.3d 336, 341; see, e.g., Perry v. Jordan (1949) 34 Cal.2d 87, 90-91 [“The

measure presented is an initiative constitutional amendment. ‘The right of

initiative is precious to the people and is one which the courts are zealous to

preserve to the fullest tenable measure of spirit as well as letter’ ”].) 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. (See McFadden, supra, 32 Cal.2d 330,

333-334.)

103

In the course of their argument, petitioners also rely upon a portion of the

passage in the 1894 decision in Livermore, supra, 102 Cal. 113, quoted above

(ante, at pp. 53-54), in which the court stated that “[t]he very term ‘constitution’

implies an instrument of a permanent and abiding nature” and “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.” (102 Cal. at pp. 118-119.) Petitioners maintain that

under this standard, Proposition 8 cannot properly be considered an amendment,

because it does not “improve” or “better carry out the purpose” of the preexisting

constitutional provisions. As suggested by our earlier discussion of the Livermore

decision, the passage in question was dictum inasmuch as it was not necessary to

the court’s determination that the measure at issue in that case — changing the

location of the state capital — constituted a constitutional amendment. (Ante, at

pp. 54-55.) Moreover, as demonstrated by the many California decisions rendered

since Livermore, the question whether a proposed constitutional change constitutes

a constitutional amendment or instead a constitutional revision does not turn upon

whether a court is of the view that the proposal “will effect an improvement” or

will “better carry out the purpose” of the preexisting constitutional provisions; the

numerous constitutional amendments that have altered prior constitutional rulings

of this court demonstrate that the people may amend the Constitution through the

initiative process when they conclude that a judicial interpretation or application of

a preexisting constitutional provision should be changed. Finally, 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 popular wave of sociological reform, like the abolition

104

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.” (102

Cal. at p. 119.) 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.27

Although we reject petitioners’ contention that the enactment of

Proposition 8 was improper because that measure was adopted through the

initiative process (as a constitutional amendment) rather than as a constitutional

revision, in order to dispel any misunderstanding or confusion we wish to make it

clear that we are not suggesting it is impossible or improper for a constitution to

contain limitations on change designed to address the concerns voiced by

petitioners in this case. Like the federal Constitution, many state constitutions do

not provide for the people’s exercise of the initiative power at all, and in those

states, of course, no such constitutional change can be proposed directly by the


27

Although Justice Moreno’s concurring and dissenting opinion suggests that

the quoted passage indicates that the court in Livermore would have considered a
popular, sociological measure to be a permissible constitutional amendment only
if the measure were one the Legislature had authority to enact as a statute (see
conc. & dis. opn. of Moreno, J., post, at p. 8, fn. 3), it is at least as reasonable to
infer that the court in Livermore would have included in the category of
appropriate constitutional amendments a popular, sociological measure — such as
a measure reinstating the death penalty, or enacting Proposition 8 — that, in light
of a recent judicial decision, could not be adopted by the Legislature as a statutory
enactment and thus, if favored by the requisite number of legislators, logically
would need to be submitted to the voters as a constitutional amendment.

105

people.28 Further, some state constitutions that embrace the initiative power do not

permit it to be used to propose and adopt constitutional amendments, limiting its

use to the proposal and adoption of statutory enactments;29 in those states, too, no

such constitutional change can be proposed directly by the people. And of the 17

other state constitutions (in addition to California’s) that permit constitutional

amendments to be proposed through the initiative process,30 two expressly prohibit

28

There are 26 states that do not have a statewide initiative process:

Alabama, Connecticut, Delaware, Georgia, Hawaii, Indiana, Iowa, Kansas,
Kentucky, Louisiana, Maryland, Minnesota, New Hampshire, New Jersey, New
Mexico, New York, North Carolina, Pennsylvania, Rhode Island, South Carolina,
Tennessee, Texas, Vermont, Virginia, West Virginia, and Wisconsin. (See
Council of State Governments, The Book of the States, supra, p. 336.)

29

Six states authorize statutory but not constitutional initiatives: Alaska

(Alaska Const., art. XI, §§ 1, 7), Idaho (Idaho Const., art. III, § 1), Maine (Me.
Const., art. IV, pt. 3d, § 18 [indirect initiative only]), Utah (Utah Const., art. VI,
§ 1(2)(a)(i)), Washington (Wn. Const., art. II, § 1), and Wyoming (Wyo. Const.,
art. 3, § 52(a)).

30

These states are: Arizona (Ariz. Const., art. 4, pt. 1, § 1(2)), Arkansas (Ark.

Const., art. 5, § 1), Colorado (Colo. Const., art. V, § 1(1)), Florida (Fla. Const., art.
XI, § 3), Illinois (Ill. Const., art. XIV, § 3), Massachusetts (Mass. Const., amend.
art. XLVIII, pt. II, § 2), Michigan (Mich. Const., art. XII, § 2), Mississippi (Miss.
Const., art. 15, § 273), Missouri (Mo. Const., art. III, § 49), Montana (Mont. Const.,
art. XIV, § 9), Nebraska (Neb. Const., art. III, §§ 1, 2), Nevada (Nev. Const., art.
19, § 2), North Dakota (N.D. Const., art. III, §§ 1, 9), Ohio (Ohio Const., art. II,
§§ 1, 1a), Oklahoma (Okla. Const., art. 5, §§ 1, 2), Oregon (Or. Const., art. IV,
§§ 1, 2), and South Dakota (S.D. Const., art. XXIII, § 1).


Although each of the foregoing 17 states permits its constitution to be

amended through the initiative process, the states differ (1) in the number,
percentage, and geographical distribution of electors who must sign an initiative
petition to qualify a measure for the ballot, (2) in the additional hurdles (if any) that
must be met in order to place the measure on the ballot (such as obtaining a
specified percentage of affirmative legislative support in successive legislative
sessions (see, post, at p. 116, fn. 40)), and (3) in the percentage of affirmative votes
that must be obtained and the number of successive elections that must be held
before the proposed amendment will become part of the state constitution. (See
Council of State Governments, The Book of the States, supra, p. 14.)

106

resort to the initiative process to modify designated provisions of the constitution,

including many or all of the rights set forth in the state constitution’s bill of rights.

(See Mass. Const., amend. art. XLVIII, pt. II, § 2; Miss. Const., art. 15, § 273,

subd. (5).)31 Thus, we have no doubt that an express restriction could be fashioned

that would limit the use of the initiative power in the manner proposed by

petitioners32 — but the California Constitution presently contains no limits of this

nature.

31

Amendment article XLVIII, part II, section 2 of the Massachusetts

Constitution excludes numerous matters from the initiative process. As pertinent
to the present case, the section provides: “No measure that relates to religion,
religious practices or religious institutions; . . . or to the reversal of a judicial
decision . . . shall be proposed by an initiative petition . . . . [¶] . . . [¶] No
proposition inconsistent with any one of the following rights of the individual, as
at present declared in the declaration of rights, shall be the subject of an initiative
or referendum petition: The right to receive compensation for private property
appropriated to public use; the right of access to and protection in courts of justice;
the right of trial by jury; protection from unreasonable search, unreasonable bail
and the law martial; freedom of the press; freedom of speech; freedom of
elections; and the right of peaceable assembly.”


Article 15, section 273, subdivision (5) of the Mississippi Constitution

provides in full: “The initiative process shall not be used: [¶] (a) For the proposal,
modification, or repeal of any portion of the Bill of Rights of this Constitution;
[¶] (b) To amend or repeal any law or any provision of the Constitution relating to
the Mississippi Public Employees’ Retirement System; [¶] (c) To amend or repeal
the constitutional guarantee that the right of any person to work shall not be denied
or abridged on account of membership or nonmembership in any labor union or
organization; or [¶] (d) To modify the initiative process for proposing amendments
to this Constitution.”


Under the Illinois Constitution, only the legislative article (art. IV) may be

amended by the initiative process. (Ill. Const., art. XIV, § 3.)

32

With regard to the matter of explicit subject-matter limitations on the

constitutional amending process, we note that article V (the amendment provision)
of the United States Constitution — which does not authorize a constitutional
amendment to be proposed by initiative — contains two explicit subject-matter
limitations. The first prohibited any change to be made, prior to the year 1808, to
the provisions of the federal Constitution relating to the slave trade and to direct

(footnote continued on next page)

107

As we have seen, when the initiative power was added to the California

Constitution in 1911, the relevant provision specified that the initiative afforded

the people authority to propose and adopt statutes and “amendments to the

constitution.” (Cal. Const., former art. IV, § 1, as adopted Oct. 10, 1911, now

art. II, § 8, subd. (a), and art. XVIII, § 3.) The provision placed no subject-matter

limitation on the initiative process and did not exempt any provision of the

existing Constitution from amendment through the initiative process. During the

nearly 100 years since adoption of the statewide initiative process in California, a

number of constitutional amendments have been adopted that impose some

restrictions on the initiative process in this state (see Cal. Const., art. II, § 8, subds.

(d), (e), (f)),33 but no provision purports to place any section or segment of the

(footnote continued from previous page)

taxes. The second — which is still operative — prohibits any amendment that
deprives a state, without its consent, “of its equal suffrage in the Senate.” (U.S.
Const., art. V.) There are no other explicit limitations to proposed changes to the
United States Constitution.

33

The cited subdivisions of article II, section 8 provide in full:

“(d) An initiative measure embracing more than one subject may not be

submitted to the electors or have any effect.


“(e) An initiative measure may not include or exclude any political

subdivision of the State from the application or effect of its provisions based upon
approval or disapproval of the initiative measure, or based upon the casting of a
specified percentage of votes in favor of the measure, by the electors of that
political subdivision.


“(f) An initiative measure may not contain alternative or cumulative

provisions wherein one or more of those provisions would become law depending
upon the casting of a specified percentage of votes for or against the measure.”


In addition to these explicit limitations on the initiative power, article II,

section 12, of the California Constitution precludes the adoption of any
constitutional amendment — whether proposed by initiative or by the
Legislature — “that names any individual to hold any office, or names or
identifies any private corporation to perform any function or to have any power or
duty . . . .”

108

state Constitution off-limits to the initiative process or to preclude the use of the

initiative with respect to specified subjects.

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. (See Wright v. Jordan (1923) 192 Cal. 704,

711-712.) 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.

K

In reaching the conclusion that Proposition 8 represents a constitutional

amendment rather than a constitutional revision, we have relied upon the history

of the relevant provisions of the California Constitution and upon the numerous

California decisions that have applied those provisions. Our Constitution,

however, is not the only state constitution that draws a distinction between

constitutional amendments and constitutional revisions. As we shall see, each out-

of-state decision that has considered whether an initiative measure similar to

Proposition 8 — that is, an initiative limiting marriage to a union of a man and a

woman — represents a constitutional amendment, or instead a constitutional

revision under a state constitution that embodies a comparable constitutional

109

amendment/revision distinction, has concluded that the measure constitutes an

amendment to, rather than a revision of, the applicable state constitution.34

The decision of the Alaska Supreme Court in Bess v. Ulmer (Alaska 1999)

985 P.2d 979 is a case in point. In that case, the plaintiffs challenged three

separate ballot propositions that proposed to add distinct provisions to the Alaska

Constitution, on the ground that each measure constituted a constitutional revision

rather than a constitutional amendment.35 The first ballot proposition at issue was


34

The constitutions of 28 states, in addition to California, have been amended

over the past decade to include provisions defining marriage as the union of a man
and a woman. (Ala. Const., art. I, § 36.03; Alaska Const., art. I, § 25; Ariz.
Const., art. 30, § 1; Ark. Const., amend. 83; Colo. Const., art. II, § 31; Fla. Const.,
art. I, § 27; Ga. Const., art. I, § IV, para. I; Idaho Const., art. III, § 28; Kan. Const.,
art. 15, § 16; Ky. Const., § 233A; La. Const., art. XII, § 15; Mich. Const., art. I,
§ 25; Miss. Const., art. 14, § 263A; Mo. Const., art. I, § 33; Mont. Const., art.
XIII, § 7; Neb. Const., art. I, § 29; Nev. Const., art. 1, § 21; N.D. Const., art. XI,
§ 28; Ohio Const., art. XV, § 11; Okla. Const., art. 2, § 35; Or. Const., art. XV,
§ 5a; S.C. Const., art. XVII, § 15; S.D. Const., art. XXI, § 9; Tenn. Const., art. XI,
§ 18; Tex. Const., art. I, § 32; Utah Const., art. I, § 29; Va. Const., art. I, § 15A;
Wis. Const., art. XIII, § 13.)


The constitutions of at least 17 of these 28 states distinguish between

constitutional amendments and constitutional revisions in a manner similar to the
California Constitution. (Ala. Const., art. XVIII, §§ 284, 286; Alaska Const.,
art. XIII, §§ 1, 4; Ariz. Const., art. 21, §§ 1, 2; Colo. Const., art. XIX, §§ 1, 2;
Idaho Const., art. XX, §§ 1, 3; Ky. Const., §§ 256, 258; La. Const., art. XIII,
§§ 1, 2; Mich. Const., art. XII, §§ 1-3; Mont. Const., art. XIV, §§ 1-9; Neb. Const.,
art. XVI, §§ 1, 2; Nev. Const., art. 16, §§ 1, 2; Ohio Const., art. XVI, §§ 1, 2;
Okla. Const., art. 24, §§ 1, 2; Or. Const., art. XVII, §§ 1, 2; S.C. Const., art. XVI,
§§ 1, 3; S.D. Const., art. XXIII, §§ 1, 2; Utah Const., art. XXIII, §§ 1, 2.) In only
two of these states — Alaska and Oregon — have the new marriage provisions
been challenged as constitutional revisions. We discuss the judicial decisions in
those two states below.

35

Under the Alaska Constitution, amendments to that constitution may be

proposed by a two-thirds vote of each legislative house and take effect if approved
by a majority of the voters. A constitutional revision, by contrast, may be proposed
only by a constitutional convention. (See Alaska Const., art. XIII, §§ 1, 4.)

110

a criminal justice measure similar in nature to the proposed amendment to article I,

section 24 of the California Constitution that our court found to be an

impermissible revision in Raven, supra, 52 Cal.3d 336.36 The second ballot

proposition was a measure — quite similar to Proposition 8 — that proposed to

add a new section to article I of the Alaska Constitution that read in full:

“Marriage. To be valid or recognized in this State, a marriage may exist only

between one man and one woman. No provision of this constitution may be

interpreted to require the State to recognize or permit marriage between

individuals of the same sex.” The third ballot proposition proposed to alter the

reapportionment scheme set forth in the Alaska Constitution by transferring the

reapportionment power from the executive branch to a neutral body composed of

members appointed by each of the three branches of government.37

In analyzing the distinction drawn in the Alaska Constitution between

constitutional amendments and constitutional revisions, the court in Bess v. Ulmer,

supra, 985 P.2d 979, drew very heavily upon the line of California

amendment/revision decisions that we have reviewed above, and ultimately


36

The first ballot proposition provided: “ ‘Rights of Prisoners.

Notwithstanding any other provision of this constitution, the rights and
protections, and the extent of those rights and protections, afforded by this
constitution to prisoners convicted of crimes shall be limited to those rights and
protections, and the extent of those rights and protections, afforded under the
Constitution of the United States to prisoners convicted of crimes.’ ” (Bess v.
Ulmer
, supra, 985 P.2d at p. 987.)

37

As described by the Alaska court, the third measure proposed to transfer the

power to draw legislative districts “from the governor, with the advice of a
reapportionment board of his own appointment, to a five-member Redistricting
Board, two members of which are appointed by the governor and one each by the
House Speaker, the Senate President, and the Chief Justice of the Supreme Court.”
(Bess v. Ulmer, supra, 985 P.2d at p. 988, fn. 60.)

111

generally agreed with the standard set forth in those decisions. (See 985 P.2d at

pp. 984-987.) The court then applied that standard to the three ballot propositions

before it in that case. With regard to the first ballot measure, the criminal justice

proposal, the court observed that “[t]his proposal bears an obvious similarity to the

initiative measure at issue in Raven” (id. at p. 987) and concluded that “[l]ike the

Raven court, we find the proposal to ‘amount to a constitutional revision beyond

the scope of the [ballot] process.’ ” (Ibid.) With regard to the second ballot

measure — the one providing in part that “[t]o be valid or recognized in this State,

a marriage may exist only between one man and one woman” — the court in Bess

v. Ulmer held that “this proposed ballot measure is sufficiently limited in both

quantity and effect of change as to be a proper subject for a constitutional

amendment. Few sections of the Constitution are directly affected, and nothing in

the proposal will ‘necessarily or inevitably alter the basic governmental

framework’ of the Constitution.” (Id. at p. 988, fn. omitted.) With regard to the

third ballot measure, involving the reapportionment power, the court found that

although “[r]eassigning this power is unquestionably a significant change in the

present system of Alaskan government,” it “does not . . . deprive the executive

branch of a ‘foundational power,’ and as a result does not constitute a revision. . . .

This proposal, unlike [the first ballot measure considered in that case], does not

‘fundamentally change[] and subordinate[] the constitutional role’ of any branch in

the governmental process. Therefore, although the proposed change is substantial,

it is not so ‘far reaching and multifarious’ as to comprise a revision.” (Id. at

pp. 988-989, fns. omitted.)

As the foregoing description reveals, in Bess v. Ulmer, supra, 985 P.2d 979,

the court — faced with essentially the same question that is before us in the

present case — concluded that the Alaska measure constituted a constitutional

amendment.

112

The Oregon Court of Appeals reached a similar conclusion in Martinez v.

Kulongoski (Or.Ct.App. 2008) 185 P.3d 498. In that case, the plaintiffs sought a

declaration that a 2004 ballot measure (Measure 36) adding a new section (art.

XV, § 5a) to the Oregon Constitution “embodied a voter-initiated revision (as

opposed to amendment) of the constitution in violation of [Oregon Constitution]

Article XVII, section 2.” (185 P.3d at p. 499.)38 The new section of that state’s

constitution added by Measure 36 provides in full: “It is the policy of Oregon, and

its political subdivisions, that only a marriage between one man and one woman

shall be valid or legally recognized as a marriage.” The plaintiffs in Martinez, like

petitioners in the cases before us, argued that Measure 36 should be considered a

revision “because ‘[t]he intended and inevitable effect of the measure is to exclude

a distinct minority group of citizens from the equal benefits and obligations of

[state] law . . . .’ ” (185 P.3d at p. 502.) The court in Martinez rejected that claim,

concluding that Measure 36 constituted a constitutional amendment rather than a

constitutional revision. In rendering its decision, the court in Martinez relied

heavily upon an earlier Oregon appellate court ruling in Lowe v. Keisling

(Or.Ct.App. 1994) 882 P.2d 91, which held that a much broader initiative

measure ― one proposing to add a new section to the Oregon Constitution that,

among other things, would have prohibited the state or local government from

granting “ ‘marital status or spousal benefits on the basis of homosexuality’ ”

(Martinez, supra, 185 P.3d at p. 504) ― did not constitute a constitutional

revision. (Martinez, supra, 185 P.3d at pp. 504-505.) In view of the similarity

38

Under the Oregon Constitution, a constitutional amendment may be

proposed through the initiative process (Or. Const., art. IV, § 1(2)(b)), but a
constitutional revision of all or part of the constitution may be submitted to the
voters only upon referral by at least two-thirds of the members of each house of
the legislature. (Or. Const., art. XVII, § 2(1).)

113

between Measure 36 and Proposition 8, the Oregon court’s decision in Martinez,

like the Alaska court’s decision in Bess v. Ulmer, supra, 985 P.2d 979, plainly

supports the conclusion we have reached above.

Although the Massachusetts Constitution does not contain a distinction

between constitutional amendments and constitutional revisions similar to those

embodied in the California, Alaska, and Oregon Constitutions, the relatively

recent decision of the Supreme Judicial Court of Massachusetts in Schulman v.

Attorney General (Mass. 2006) 850 N.E.2d 505 (Schulman) nonetheless also bears

some relevance to the issue before us. In Schulman, the Massachusetts high court

addressed the validity of an initiative petition that had been drafted in response to

that court’s decision in Goodridge v. Department of Public Health, supra, 798

N.E.2d 941 (Goodridge), in which the court held that the Massachusetts marriage

statute — which the court interpreted as restricting civil marriages to unions

between persons of the opposite sex — violated the due process and equal

protection guarantees of the Massachusetts Constitution. The initiative measure at

issue in Schulman proposed to amend the Massachusetts Constitution to provide

that “ ‘the Commonwealth and its political subdivisions shall define marriage only

as the union of one man and one woman.’ ” (Schulman, supra, 850 N.E.2d at

p. 506.) Under Massachusetts law, such an initiative petition first must be

presented to the state Attorney General, who reviews the proposed measure to

determine whether it is a lawful initiative measure or instead is excluded from the

initiative process by the Massachusetts Constitution. In Schulman, after the

Attorney General certified the petition as a permissible initiative measure, a court

action was filed challenging the certification, and the issue was brought directly

before the Massachusetts high court.

As already noted, unlike the California Constitution, the Massachusetts

Constitution places specific substantive limits on the matters that may be proposed

114

by an initiative petition. (See Mass. Const., amend. art. XLVIII, pt. II, § 2, quoted

in part, ante, at p. 107, fn. 31.) In Schulman, the limited issue considered by the

court was whether the initiative petition in question was precluded by the portion

of amendment article XLVIII, part II, section 2 of the Massachusetts Constitution

stating that “[n]o measure that relates to . . . the reversal of a judicial decision

. . . shall be proposed by an initiative petition . . . . ” (Schulman, supra, 850

N.E.2d at p. 507.)39 The plaintiff in that case argued that this constitutional

provision precluded the use of the initiative process to add a constitutional

provision that would “reverse” or “overrule” the Supreme Judicial Court’s holding

in Goodridge, supra, 798 N.E.2d 941, that limiting marriage to opposite-sex

couples violated the provisions of the Massachusetts Constitution.

In Schulman, the Massachusetts high court unanimously rejected the

plaintiff’s contention, explaining that “ ‘reversal of a judicial decision’ has a

specialized meaning in our jurisprudence” (Schulman, supra, 850 N.E.2d at

p. 507) — referring only to the vacating or setting aside of a judgment in a

particular case — and that such language “does not bar the people from using the

initiative process to amend the Constitution prospectively, thereby changing the

substantive law to be applied and effectively ‘overruling’ the precedential effect of

a prior court decision interpreting [the Constitution] . . . .” (Id. at pp. 508-509.) In

reaching that conclusion, the court in Schulman quoted with approval an earlier


39

We note that the right not to be deprived of liberty without due process of

law and the guarantee of equal protection of the laws — the state constitutional
rights underlying the Massachusetts Supreme Judicial Court’s decision in
Goodridge, supra, 798 N.E.2d 941, 961 — are not specifically included in the list
of rights excluded from the initiative process under amendment article XLVIII,
part II, section 2. (See, ante, at p. 107, fn. 31 [quoting relevant portion of the
constitutional provision].)

115

Massachusetts decision that specifically declared: “ ‘[T]he initiative process

permits the people to petition for a constitutional amendment that overrules a court

decision when the court has declared a statute to be in violation of our

Constitution.’ ” (Id. at p. 510, fn. 12, quoting Albano v. Attorney General (Mass.

2002) 769 N.E.2d 1242, 1250; see also Mazzone v. Attorney General (Mass. 2000)

736 N.E.2d 358, 370 [“Citizens [may] . . . overrule a decision based on State

constitutional grounds, but they [may] do so only by constitutional amendment”].)

As illustrated by the decision of the Massachusetts Supreme Judicial Court

in Schulman, supra, 850 N.E.2d 505, even under a state constitution that places

significant limits on the initiative process, the people, through the initiative

process, validly may propose an amendment to the state constitution that

prospectively changes the substantive constitutional rule set forth in a judicial

decision analogous to the majority opinion in our Marriage Cases, supra, 43

Cal.4th 757. Thus, although the Schulman decision does not speak directly to the

amendment/revision issue, the Massachusetts court’s conclusion in that case

demonstrates that, contrary to petitioners’ assertions in the present case, a measure

such as Proposition 8 is not inconsistent with the commonly accepted scope of the

initiative process.40


40

Under the Massachusetts Constitution, once the attorney general certifies

that a petition contains only subjects not excluded from the initiative power, the
petition may be circulated for signature. If the measure obtains the requisite
number of signatures, it is submitted to the Massachusetts Legislature. If the
measure receives the affirmative vote of at least one-quarter of the legislature, it is
referred to the next legislative session. If at the next legislative session the
measure again obtains the affirmative vote of one-quarter of the members of the
legislature, it is submitted to a vote of the people at the next statewide election.
(Mass. Const., amend. art. XLVIII, pts. II, III, IV.)


The initiative measure at issue in Schulman, supra, 850 N.E.2d 505,

obtained the required number of signatures, received an affirmative vote from at

(footnote continued on next page)

116

Finally, the very recent decision of the Iowa Supreme Court in Varnum v.

Brien, supra, 763 N.W.2d 862, is also instructive in this regard. In that case, the

Iowa Supreme Court held that the Iowa statute limiting marriage to a union

between a man and a woman violated the equal protection clause of the Iowa

Constitution. Nonetheless, in the course of its unanimous opinion, the Iowa high

court took care to point out explicitly that “it should be recognized that the

constitution belongs to the people, not the government or even the judicial branch

of government. See Iowa Const., art. I, § 2 (‘All political power is inherent in the

people. Government is instituted for the protection, security, and benefit of the

people, and they have the right, at all times, to alter or reform the same, whenever

the public good may require it.’).[41] While the constitution is the supreme law

and cannot be altered by the enactment of an ordinary statute, the power of the

constitution flows from the people, and the people of Iowa retain the ultimate

power to shape it over time. See Iowa Const. art. X (‘Amendments to the

Constitution’).” (763 N.W.2d at p. 876, italics added.) Thus, 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

Constitution of that state, the court at the same time acknowledged the ultimate


(footnote continued from previous page)

least the requisite one-quarter of the state legislators when first presented to the
legislature, but failed to obtain the required affirmative vote of the state legislators
at the next legislative session. As a consequence, the measure never was
submitted to the voters of Massachusetts. (See Belluck, Massachusetts Gay
Marriage to Remain Legal
, N.Y. Times (June 15, 2007)
<http://www.nytimes.com/2007/06/15/us/15gay.html?_r=1&pagewanted=print>
[as of May 26, 2009].)

41

As we have seen (ante, pp. 43-44), the California Constitution contains a

nearly identical provision.

117

power of the people to alter the content of the state Constitution through a

constitutional amendment.42 Although Justice Moreno’s concurring and

dissenting opinion quotes a number of stirring passages from the Iowa court’s

decision in Varnum v. Brien (see conc. & dis. opn. of Moreno, J., post, at pp. 1,

23) — passages that mirror the views set forth in the majority opinion in the

Marriage Cases, supra, 43 Cal.4th 757 — his opinion labors to distinguish the

above-quoted passage in Varnum v. Brien in which the Iowa high court speaks

most directly to the issue facing us in the present case (in contrast to the issue that

was before us in the Marriage Cases). (See conc. & dis. opn. of Moreno, J., post,

at p. 23, fn. 10.)

L

For the reasons discussed above, we conclude that Proposition 8 constitutes

a constitutional amendment, rather than a constitutional revision, and that

therefore it is not invalid because it was proposed through the initiative process.

IV

In addition to contending that Proposition 8 represents a constitutional

revision, petitioners assert this measure is invalid because it violates the separation

of powers doctrine embodied in the California Constitution. The gist of

petitioners’ argument is that this doctrine is violated when the initiative process is

used to “readjudicate” controversies that have been litigated and settled by the

courts. Because, in petitioners’ view, Proposition 8 purports to readjudicate the

42

The Iowa Constitution, like the California Constitution, distinguishes

between constitutional amendments and constitutional revisions, providing that a
constitutional revision may be proposed only by a constitutional convention. (See
Iowa Const., art. X, §§ 1 [amendment], 3 [revision].) Notably, the court in
Varnum v. Brien did not confine its reference only to the provision authorizing
alteration of the Iowa constitution by constitutional revision.


118

controversy that was litigated and resolved in the Marriage Cases, supra, 43

Cal.4th 757, they maintain that this initiative measure violates the state

constitutional separation of powers doctrine. As we explain, we conclude this

claim lacks merit.

Article III, section 3, of the California Constitution — the state

constitutional separation of powers clause — provides: “The powers of State

government are legislative, executive, and judicial. Persons charged with the

exercise of one power may not exercise either of the others except as permitted by

this Constitution.” As we observed in Superior Court v. County of Mendocino

(1996) 13 Cal.4th 45: “Although the language of . . . article III, section 3, may

suggest a sharp demarcation between the operations of the three branches of

government, California decisions have long recognized that, in reality, the

separation of powers doctrine ‘ “does not mean that the three departments of our

government are not in many respects mutually dependent” ’ [citation], or that the

actions of one branch may not significantly affect those of another branch. . . .

Such interrelationship . . . lies at the heart of the constitutional theory of ‘checks

and balances’ that the separation of powers doctrine is intended to serve.” (Id. at

pp. 52-53.)

In this case, petitioners’ argument is premised upon the assumption that

Proposition 8 constitutes a “readjudication” of the issue resolved in the Marriage

Cases, supra, 43 Cal.4th 757. That claim rests on a fundamental

misunderstanding of the effect of Proposition 8. The decision in the Marriage

Cases evaluated the validity of the California marriage statutes limiting marriage

to opposite-sex couples in the context of the provisions of the state Constitution as

they existed at the time of our decision. Proposition 8 does not address or affect

that issue, but instead amends the California Constitution to add a new provision

that was not a part of the Constitution when the decision in the Marriage Cases

119

was handed down. The new constitutional provision does not purport to declare

the state of the law as it existed when the Marriage Cases decision was rendered,

but instead establishes a new substantive state constitutional rule that became

effective once Proposition 8 was approved by the voters. Thus, it is not accurate

to suggest that Proposition 8 readjudicates the legal issue that was presented and

resolved in the Marriage Cases.

To the extent petitioners’ argument rests upon the theory that once a court

has construed a provision of the state Constitution in a particular manner, the

people may not employ the initiative power to change the provisions of the state

Constitution for the future, their contention similarly lacks merit. Our past cases

make clear that “[t]he people may adopt constitutional amendments which define

the scope of existing state constitutional protections” (People v. Valentine (1986)

42 Cal.3d 170, 181), and that when they do so the new “specific command

supersedes any previous inconsistent interpretations of our state charter’s . . .

guarantees.” (Ibid., citation omitted.) As demonstrated by the numerous decisions

reviewed above (see, e.g., Frierson, supra, 25 Cal.3d 142; Brosnahan, supra, 32

Cal.3d 236; Raven, supra, 52 Cal.3d 336), there have been many instances in the

past in which the people have exercised their authority under the initiative power

to alter the provisions of the state Constitution in response to decisions of this

court, significantly changing the substantive content of the state Constitution with

regard to its application to future events and controversies. The suggestion that

such action violates the separation of powers doctrine embodied in the California

Constitution flies in the face of these authorities.43


43

Insofar as petitioners rely by analogy on the United States Supreme Court’s

decision in City of Boerne v. Flores (1997) 521 U.S. 507, we find that decision
inapposite. In City of Boerne, the high court found that a provision of the federal

(footnote continued on next page)

120

Under the California Constitution, the authority to propose and adopt

amendments to the Constitution is a power specifically recognized as one that the

people may exercise through the initiative process. (Cal. Const., art. II, § 8, subd.

(a); id., art. XVIII, § 3.) In utilizing the initiative process in this fashion, the

people do not usurp a power that the Constitution allocates exclusively to some

other entity or branch of government, but rather employ a power explicitly

entrusted to them by the Constitution. Once the people have adopted a

constitutional amendment, of course, it is the duty of the courts to apply the state

Constitution as amended by the new provision, but that circumstance does not in

any sense signify that the adoption of such an amendment improperly impinges

upon the judiciary’s authority or responsibility, in violation of the separation of

powers doctrine. Instead, the court’s obligation to follow the mandate of the

amended Constitution simply flows from the judiciary’s foundational

responsibility to act in accordance with the commands of the current governing


(footnote continued from previous page)

Religious Freedom Restoration Act of 1993 was unconstitutional insofar as it
purported to alter the standard adopted in a preceding decision of the court
(Employment Div., Ore. Dept. of Human Res. v. Smith (1990) 494 U.S. 872)
pertaining to “what constitutes a constitutional violation.” (City of Boerne, supra,
521 U.S. at p. 519; see also id. at pp. 529-536.) There is a crucial distinction
between the measure at issue in City of Boerne and the one before us today. In
City of Boerne, the challenged measure was a statutory provision, whereas
Proposition 8 is a constitutional amendment. Nothing in City of Boerne suggests
that a constitutional interpretation set forth in a judicial decision cannot be altered
by the subsequent adoption of a constitutional amendment, and history belies any
such claim. (See, e.g., U.S. Const., 14th Amend. [changing constitutional rule
adopted in Dred Scott v. Sandford (1857) 60 U.S. 393, as confirmed in Bell v.
Maryland
(1964) 378 U.S. 226, 300-301]; U.S. Const., 16th Amend. [changing
constitutional rule adopted in Pollock v. Farmers’ Loan & Trust Company (1895)
158 U.S. 601, as confirmed in Brushaber v. Union Pacific R.R. Co. (1916) 240
U.S. 1, 18].)

121

law. (Accord, Crawford v. Los Angeles Board of Education (1982) 458 U.S. 527,

546 (conc. opn. of Blackmun, J.) [“State courts do not create the rights they

enforce; those rights originate elsewhere — in the state legislature, in the State’s

political subdivisions, or in the state constitution itself. When one of those rights

is repealed, and therefore is rendered unenforceable in the courts, that action

hardly can be said to restructure the State’s decisionmaking mechanism”].)

Accordingly, we conclude there is no merit in the claim that Proposition 8

violates the separation of powers doctrine and should be held invalid on that

ground.

V

In his briefing before this court, the Attorney General agrees with our

conclusions that Proposition 8 constitutes a constitutional amendment rather than a

constitutional revision, and that the measure does not violate the separation of

powers doctrine. The Attorney General, however, advances a novel, alternative

theory under which he claims Proposition 8 should be held invalid. Relying

largely on the circumstance that article I, section 1 of the California Constitution

characterizes certain rights as “inalienable,” the Attorney General maintains that

“Proposition 8 should be invalidated even if it is deemed to amend the

Constitution because it abrogates fundamental rights protected by article I without

a compelling interest.”

The Attorney General’s argument is fundamentally flawed on a number of

levels. First, as we have explained above and as the Attorney General’s brief itself

recognizes in its discussion of the amendment/revision issue, Proposition 8 does

not “abrogate” or eliminate a same-sex couple’s “inalienable” constitutional rights

as guaranteed by article I, section 1 of the California Constitution. The language

of the new constitutional section added by Proposition 8 does not purport to have

such a broad reach or effect, and instead properly must be interpreted as simply

122

carving out a limited exception to the reach of the constitutional rights of privacy

and due process as explicated in the majority opinion in the Marriage Cases,

supra, 43 Cal.4th 757. Same-sex couples retain all of the fundamental substantive

components encompassed within the constitutional rights of privacy and due

process, with the sole (albeit significant) exception of the right to equal access to

the designation “marriage,” a term that — for purposes of the California

Constitution as it now reads — the people have decreed is to be reserved for an

official union between a man and a woman. Although Proposition 8 does diminish

the rights of same-sex couples under article I, section 1 in this one respect, it does

not have the sweeping constitutional effect suggested by the Attorney General’s

argument.

Second, contrary to the implication of the Attorney General’s assertion, the

circumstance that the rights listed in article I, section 1 — and in other sections of

the Constitution — are identified as “inalienable” does not signify that such rights

are totally exempt from any limitation or restriction. (See also, e.g., art. I, § 28,

subd. (c) [“All students and staff of public primary, elementary, junior high and

senior high schools have the inalienable right to attend campuses which are safe,

secure and peaceful” (italics added)].) This circumstance is apparent from even a

cursory examination of the list of inalienable rights embodied in article I,

section 1. Article I, section 1 provides in full: “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.” It is undisputed, of course, that an

individual’s right to “acquir[e], possess[], and protect[] property” —

notwithstanding its “inalienable” status — long has been recognized as subject to

reasonable regulation and limitation, and this is so even in the absence of a

constitutional amendment explicitly limiting this right. (See, e.g., In re Weisberg

123

(1932) 215 Cal. 624, 627-628 [pursuant to the police power, the Legislature may

“place such restrictions upon the use of any property or the conduct of any

business as may be reasonably necessary for the public safety, comfort or

health”].)

Third, the “inalienable” nature of a constitutional right never has been

understood to preclude the adoption of a constitutional amendment that limits or

restricts the scope or application of such a right. As noted above (ante, at p. 44,

fn. 12), from the beginnings of our state constitutional history, the right of the

people “to alter or reform” the provisions of the Constitution itself has been

understood to constitute one of the fundamental rights to which article I, section 1

refers (see 1849 Debates, supra, pp. 33-34), and California’s 1849 Constitution

enshrined this right as an integral part of the original Declaration of Rights in

former article I, section 2, which provided: “All political power is inherent in the

people. Government is instituted for the protection, security, and benefit of the

people; and they have the right to alter or reform the same, whenever the public

good may require it.” (Italics added.)44 Indeed, the drafters of the 1849

Constitution, in their message submitting the proposed Constitution to the people of

California, expressly described the people’s right to alter or reform the Constitution

as an “inalienable right.” (1849 Debates, p. 474.)45 In like manner, when the

people’s authority to propose and adopt constitutional amendments by initiative


44

This provision is currently set forth in nearly identical language in article II,

section 1 of the California Constitution. (See, ante, at p. 43.)

45

Many other state constitutions explicitly refer to the people’s right to alter

their constitution as an “inalienable” right. (See, e.g., Ala. Const., art. I, § 2; Ky.
Const., § 4; Md. Const., Decl. of Rights, art. 1; Pa. Const., art. 1, § 2; Tex. Const.,
art. I, § 2; Va. Const., art. I, § 3; W.Va. Const., art. III, § 3; Wyo. Const., art. 1,
§ 1.)

124

was added to the California Constitution in 1911, the constitutional provision spoke

of the initiative “not as a right granted the people, but as a power reserved by

them.” (Associated Home Builders, supra, 18 Cal.3d 582, 591, italics added; see,

ante, at pp. 56-57 [quoting original initiative provision].) Accordingly, there is no

basis for suggesting that the inalienable rights set forth in article I, section 1, and

the other provisions of the Declaration of Rights, are of a higher order than — and

thus exempt from — the people’s right to “alter or reform” the Constitution through

either the legislative or the initiative constitutional amendment process. Indeed, a

review of the current version of the constitutional provisions contained within

article I’s Declaration of Rights demonstrates that modification of such rights

through the amendment process has occurred throughout our state’s history.46

46

For example, although article I, section 16 of the current California

Constitution refers to the right to trial by jury as an “inviolate right” (italics added)
(as did the comparable provision in the original Constitution (see Cal. Const. of
1849, art. I, § 3)), the constitutional right to jury trial was altered by a
constitutional amendment permitting the Legislature to provide that a jury shall
consist of eight persons (rather than the 12-person jury previously required) in
civil cases tried in municipal and justice courts. (See Cal. Const., art. I, former
§ 16, as amended Nov. 4, 1980.) (Subsequently, in conjunction with the
unification of the municipal and superior courts, the reference to “civil causes in
municipal and justice court” was changed to refer to “civil causes other than
causes within the appellate jurisdiction of the court of appeal” (Cal. Const., art. I,
§ 16, as amended June 2, 1998).)


Similarly, article I, section 15, which sets out a number of fundamental

rights of criminal defendants that also were contained in the Declaration of Rights
in California’s first state Constitution (see Cal. Const. of 1849, art. I, § 8), was
modified in 1934 by a constitutional amendment adopted through the initiative
process. This amendment permitted a trial judge in a criminal proceeding to
comment on the evidence and, if a defendant chose not to testify, to comment on
the defendant’s failure to testify. (Cal. Const., art. I, former § 13, as amended
Nov. 6, 1934.) The portion of the 1934 amendment permitting judicial comment
on a defendant’s failure to testify “was deleted in 1974 as violative of the
defendant’s right to remain silent under the Fifth Amendment to the federal
Constitution.” (Cal. Constitution Reference Guide, supra, at p. 54.) The state

(footnote continued on next page)

125

In urging this court to confer upon the “inalienable rights” terminology of

article I, section 1 a much more sweeping and far reaching meaning than it

traditionally has borne, the Attorney General cites selected excerpts from a

number of mid-19th-century opinions that gave voice to the natural-rights

jurisprudence that was common in that era. (See, e.g., Ex parte Newman (1858)

9 Cal. 502, 507 (lead opn. of Terry, C. J.); id. at p. 511 (conc. opn. of Burnett, J.);

Billings v. Hall (1857) 7 Cal. 1, 6-7 (maj. opn. of Murray, C. J.).) As pointed out

in the response filed by interveners, however, the expansive natural-rights

jurisprudence of that time long has been discredited (see Tribe, American

Constitutional Law (3d ed. 2000) pp. 1335-1362) and, moreover, even the cited

jurists never suggested that courts possess the authority to invalidate an explicit

constitutional amendment, adopted through a constitutionally prescribed

procedure, on the ground that the amendment is inconsistent with the scope of a

right previously embodied in the Constitution. (See, e.g., Ex parte Newman,


(footnote continued from previous page)

constitutional rule permitting judicial comment on the evidence remains in effect
and currently is set forth in article VI, section 10 of the California Constitution.


In addition, article I, section 19 — the current provision barring the taking

of private property for public use without the payment of just compensation (cf.
Cal. Const. of 1849, art. I, § 8) — includes an explicit qualification, first added by
a constitutional amendment adopted in 1918, authorizing the Legislature to permit
a public entity to obtain possession of property upon “commencement of eminent
domain proceedings,” but before their completion, by “deposit in court and prompt
release to the owner” of an amount “determined by the court to be the probable
amount of just compensation.” (See Cal. Const., art. I, former § 14, as amended
Nov. 5, 1918.)


Finally, as discussed above (see, ante, at pp. 96-97), the state equal

protection clause set forth in article I, section 7, contains an explicit exception,
adopted by a constitutional amendment in 1979, prohibiting a court from requiring
the busing of students as a remedy for violations of state equal protection
principles except as required by the United States Constitution.

126

supra, 9 Cal. at pp. 511-512 (conc. opn. of Burnett, J.) [“The judiciary is but the

creature of the Constitution, and can not judge its creator. It can not rise above the

source of its own existence. If it could do this, it could annul the Constitution,

instead of simply declaring what it means”]; Nougues v. Douglass (1857) 7 Cal.

65, 67 (maj. opn. of Burnett, J.) [“where the language of the Constitution is

express and the intent plain, there is no power in the judicial department to set it

aside”].) As discussed at length above, on numerous occasions in the past this

court’s interpretation of the fundamental constitutional protections accorded by the

state Constitution to the “life and liberty” of those accused of crime has been

modified by constitutional amendments proposed and adopted through the

initiative process, and the constitutional validity of those amendments repeatedly

has been sustained in our prior decisions. (See, e.g., Frierson, supra, 25 Cal.3d

142; Brosnahan, supra, 32 Cal.3d 236; Raven, supra, 52 Cal.3d 336, 350, 355-356

[upholding all constitutional changes embodied in Proposition 115 other than the

proposed amendment of art. I, § 24].) In short, the Attorney General’s position

finds no support in the governing California authorities. (See also Olson v. Cory

(1982) 134 Cal.App.3d 85, 101 [“there is no inalienable right or natural law which

might arguably be above the California Constitution”].)

In defending his argument, the Attorney General emphasizes that he “is

duty bound to uphold the whole of the Constitution, not only the People’s

reservation of the initiative power, but also the People’s expression of their will in

the Constitution’s Declaration of Rights.” (Original italics.) When we examine

the entirety of the California Constitution, however, we find nothing that exempts

article I, section 1 — or any other section of the Constitution — from the

amendment process set forth in article XVIII. As we have noted above, a number

of constitutions in other jurisdictions do contain provisions excluding designated

provisions of those constitutions from amendment. (See, ante, at pp. 106-107 &

127

fn. 31.) The current California Constitution contains no restriction of this kind,

however, and in the absence of such an explicit limitation we would exceed the

well-established and time-honored limits of the judicial role were we to take it

upon ourselves to fashion such a restriction upon the present and future right of the

people to determine the content of the Constitution that governs our state.47

Accordingly, we must decline to invalidate Proposition 8 on the theory

advanced by the Attorney General.

VI

Having concluded that Proposition 8 is not invalid on any of the grounds

advanced by petitioners or the Attorney General, we reach the third issue upon

which we requested briefing, namely, the effect (if any) of Proposition 8 on the

marriages of same-sex couples performed prior to the adoption of Proposition 8.

On this question, petitioners and the Attorney General maintain that

Proposition 8 properly must be interpreted to operate only prospectively and not to

invalidate or have any other effect on the marriages of same-sex couples that were

performed before Proposition 8 became effective. Interveners, by contrast,


47

As one legal commentator has explained: “To empower the courts not

simply to review the procedures whereby amendments were adopted but also to
void amendments on the basis of their substantive content would surely threaten
the notion of a government founded on the consent of the governed.” (Viles, The
Case Against Implicit Limits on the Constitutional Amending Process
in
Responding to Imperfection (Levinson edit. 1995) 191, 198; see also Tribe, A
Constitution We Are Amending: In Defense of a Restrained Judicial Role (1983)
97 Harv. L.Rev. 433, 442 [“allowing the judiciary to pass on the merits of
constitutional amendments would unequivocally subordinate the amendment
process to the legal system it is intended to override and would thus gravely
threaten the integrity of the entire structure”].)


128

contend that marriages of same-sex couples performed before Proposition 8 took

effect no longer are valid or recognized under California law.

As we shall explain, we conclude that Proposition 8 should be interpreted

to apply prospectively and not to invalidate retroactively the marriages of same-

sex couples performed prior to its effective date.

We begin with the well-established general principles governing the

question whether a statutory or constitutional provision should be interpreted to

apply prospectively or retroactively. In Evangelatos v. Superior Court (1988)

44 Cal.3d 1188 (Evangelatos) — perhaps the leading California decision on this

subject — our court explained that “[i]t is a widely recognized legal principle . . .

that in the absence of a clear legislative intent to the contrary statutory enactments

apply prospectively.” (44 Cal.3d at pp. 1193-1194.) After canvassing numerous

past California decisions in this area, the court in Evangelatos observed that

“California continues to adhere to the time-honored principle . . . that in the

absence of an express retroactivity provision, a statute will not be applied

retroactively unless it is very clear from extrinsic sources that the Legislature or

the voters must have intended a retroactive application.” (Id. at pp. 1208-1209,

italics added.)

Our decision in Evangelatos, supra, 44 Cal.3d 1188, itself applied this

general principle to a statutory provision adopted through the initiative process,

and thus it is clear that this principle applies to initiative measures as well as to

legislative enactments. In addition, past cases further establish that this principle

applies equally to constitutional amendments adopted through the initiative

process. (Rosasco v. Commission on Judicial Performance (2000) 82 Cal.App.4th

315, 323.) No party disputes these points.

We proceed to evaluate the prospectivity or retroactivity of Proposition 8 in

light of these controlling principles. As we have seen, Proposition 8 is very brief

129

and provides in its entirety: “Only marriage between a man and a woman is valid

or recognized in California.” It is obvious, of course, that the proposition does not

contain a retroactivity provision, that is, a provision explicitly stating that the

measure is to have retroactive effect. (Cf., e.g., Good v. Superior Court (2008)

158 Cal.App.4th 1494, 1504 [where the measure at issue stated that

“ ‘[s]ubdivision (a) and all of its paragraphs shall have retroactive application’ ”

and shall apply “ ‘regardless of when the person was convicted of the qualifying

offense’ ”].) Thus, under the rule of interpretation set forth above, the measure

cannot be construed to apply retroactively “unless it is very clear from extrinsic

sources that . . . the voters must have intended a retroactive application.”

(Evangelatos, supra, 44 Cal.3d 1188, 1209.)

Interveners contend, however, that even though Proposition 8 does not

contain a retroactivity clause, the “plain language” of the measure — “[o]nly

marriage between a man and a woman is valid or recognized in California” (italics

added) — “encompasses both pre-existing and later-created” marriages of same-

sex couples and “declares that they are not valid or recognized in California.” As

past decisions demonstrate, however, the circumstance that the language of a

measure is written in the present tense (“is valid or recognized”) does not clearly

demonstrate that the measure is intended to apply retroactively. (See, e.g.,

McClung v. Employment Dev. Dept. (2004) 34 Cal.4th 467, 471 [holding statute

providing that “ ‘an employee . . . is personally liable for any harassment . . .

perpetrated by the employee’ ” (italics added) does not apply retroactively to

harassment committed before the enactment]; Myers v. Philip Morris Companies,

Inc. (2002) 28 Cal.4th 828, 842 (Myers) [holding statute providing that “ ‘there

exists no statutory bar’ ” for claims of smokers “ ‘who have suffered or incurred

injuries’ ” (italics added) does not apply retroactively to impose liability on

130

tobacco company for sales occurring during period in which tobacco companies

enjoyed statutory immunity].)

Although the thrust of their “plain language” argument is somewhat

unclear, interveners may be suggesting that so long as Proposition 8 is applied

only to acts that occur after Proposition 8 became effective, the measure is not

being applied retroactively but rather prospectively, even if the marriages that are

now (or in the future would be) denied recognition were performed prior to the

adoption of Proposition 8. To the extent this accurately reflects interveners’

position, our prior cases establish that this contention lacks merit. As we

explained in Myers: “[A] . . . retrospective law ‘ “is one which affects rights,

obligations, acts, transactions and conditions which are performed or exist prior to

the adoption of the statute.” ’ [Citations.] . . . ‘ “[E]very statute, which takes away

or impairs vested rights acquired under existing laws, or creates a new obligation,

imposes a new duty, or attaches a new disability, in respect to transactions or

considerations already past, must be deemed retrospective.” ’ ” (Myers, supra, 28

Cal.4th at p. 839; see also Californians for Disability Rights v. Mervyn’s, LLC

(2006) 39 Cal.4th 223, 231; Evangelatos, supra, 44 Cal.3d 1188, 1205; Aetna Cas.

& Surety Co. v. Ind. Acc. Com. (1947) 30 Cal.2d 388, 391.) Were Proposition 8 to

be applied to invalidate or to deny recognition to marriages performed prior to

November 5, 2008, rendering such marriages ineffective in the future, such action

would take away or impair vested rights acquired under the prior state of the law

and would constitute a retroactive application of the measure.

Accordingly, we turn to the question whether “it is very clear from extrinsic

sources that . . . the voters must have intended a retroactive application.”

(Evangelatos, supra, 44 Cal.3d 1188, 1209.) When an initiative measure is at

issue, the most potentially informative extrinsic source is usually the material

contained in the ballot pamphlet that is mailed to each voter. (See, e.g., People v.

131

Litmon (2008) 162 Cal.App.4th 383, 407-408.) In the case of Proposition 8,

neither the official title and summary prepared by the Attorney General, nor the

analysis prepared by the Legislative Analyst, contains any reference to the

retroactivity issue. Similarly, neither the argument in favor of Proposition 8 nor

the argument against it adverts to the question of retroactivity.

To support their claim that extrinsic sources demonstrate that the voters

must have intended a retroactive application of the measure, interveners rely upon

a sentence that appears in the rebuttal to the argument against Proposition 8. That

sentence states: “Your YES vote on Proposition 8 means that only marriage

between a man and a woman will be valid or recognized in California, regardless

of when or where performed.” (Nov. 2008 Voter Information Guide, supra,

rebuttal to argument against Prop. 8, p. 57.)

In our view, this sentence — which does not explicitly state the measure

would invalidate or deny recognition to marriages of same-sex couples lawfully

performed in California prior to adoption of the measure — is insufficient to

demonstrate, clearly and unambiguously, that the voters must have intended a

retroactive application. (See, e.g., Californians for Disability Rights v.

Mervyn’s, LLC, supra, 39 Cal.4th 223, 229 [courts “have been cautious not to

infer the voters’ or the Legislature’s intent on the subject of prospective versus

retrospective operation from ‘vague phrases’ [citation] and ‘broad, general

language’ ”]; Myers, supra, 28 Cal.4th at p. 841 [“ ‘statute that is ambiguous with

respect to retroactive application is construed . . . to be unambiguously

prospective’ ”].) Indeed, the absence of a very clear and unambiguous statement

that the measure would have the effect of invalidating the estimated 18,000

marriages of same-sex couples that already had been lawfully entered into is

particularly telling in this instance, because if this asserted effect of the measure

“had been brought to the attention of the electorate, it might well have detracted

132

from the popularity of the measure.” (Evangelatos, supra, 44 Cal.3d at p. 1219.)

In this regard, we note that interveners have not cited any California decision in

which a measure that changed the qualifications for marriage (or the categories of

persons who lawfully can enter into marriage) has been applied retroactively to

abrogate the continued validity of marriages that lawfully were entered into before

the new measure took effect. (See, e.g., Wells v. Allen (1918) 38 Cal.App. 586,

588 [giving legal effect to a common law marriage “which was a valid marriage in

this state at the time these parties assumed that relation”].)

Furthermore, our determination that Proposition 8 cannot properly be

interpreted to apply retroactively to invalidate lawful marriages of same-sex

couples that were performed prior to the adoption of Proposition 8 is additionally

supported by our recognition that a contrary resolution of the retroactivity issue

would pose a serious potential conflict with the state constitutional due process

clause.

Past cases establish that retroactive application of a new measure may

conflict with constitutional principles “if it deprives a person of a vested right

without due process of law.” (In re Marriage of Buol (1985) 39 Cal.3d 751, 756

[applying state due process clause].) In In re Marriage of Bouquet (1976) 16

Cal.3d 583, 592, this court explained that “[i]n determining whether a retroactive

law contravenes the due process clause, we consider such factors as the

significance of the state interest served by the law, the importance of the

retroactive application of the law to the effectuation of that interest, the extent of

reliance upon the former law, the legitimacy of that reliance, the extent of actions

taken on the basis of that reliance, and the extent to which the retroactive

application of the new law would disrupt those actions.” (See also Buol, supra, 39

Cal.3d at p. 761; In re Marriage of Fellows (2006) 39 Cal.4th 179, 189.)

133

Here, same-sex couples who married after the decision in the Marriage

Cases, supra, 43 Cal.4th 757, was rendered, and before Proposition 8 was adopted,

acquired vested property rights as lawfully married spouses with respect to a wide

range of subjects, including, among many others, employment benefits, interests in

real property, and inheritances. These couples’ reliance upon this court’s final

decision in the Marriage Cases was entirely legitimate. A retroactive application

of the initiative would disrupt thousands of actions taken in reliance on the

Marriage Cases by these same-sex couples, their employers, their creditors, and

many others, throwing property rights into disarray, destroying the legal interests

and expectations of thousands of couples and their families, and potentially

undermining the ability of citizens to plan their lives according to the law as it has

been determined by this state’s highest court. By contrast, a retroactive

application of Proposition 8 is not essential to serve the state’s current interest (as

reflected in the adoption of Proposition 8) in preserving the traditional definition

of marriage by restricting marriage to opposite-sex couples; that interest is

honored by applying the measure prospectively and by having the traditional

definition of marriage enshrined in the state Constitution where it can be altered

only by a majority of California voters.

Under these circumstances, we conclude that interpreting Proposition 8 to

apply retroactively would create a serious conflict between the new constitutional

provision and the protections afforded by the state due process clause. In the

absence of a clear and unambiguous statement that the new provision is to have

such an effect, the general legal guideline that requires courts to interpret

potentially conflicting constitutional provisions in a manner that harmonizes the

provisions, to the extent possible, further supports the conclusion that Proposition

8 properly must be interpreted to apply only prospectively.

134

Accordingly, applying these well-established principles of interpretation

relating to the question of retroactivity, we conclude that Proposition 8 cannot be

interpreted to apply retroactively so as to invalidate the marriages of same-sex

couples that occurred prior to the adoption of Proposition 8. Those marriages

remain valid in all respects.48

VII

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 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.

Having determined that none of the constitutional challenges to the

adoption of Proposition 8 have merit, we observe that if there is to be a change to

the state constitutional rule embodied in that measure, it must “find its expression

at the ballot box.” (In re Marriage Cases, supra, 43 Cal.4th 757, 884 (conc. &

dis. opn. of Corrigan, J.); see also id. at pp. 861, 878 (conc. & dis. opn. of

Baxter, J.).)


48

We have no occasion in this case to determine whether same-sex couples

who were lawfully married in another jurisdiction prior to the adoption of
Proposition 8, but whose marriages were not formally recognized in California
prior to that date, are entitled to have their marriages recognized in California at
this time. None of the petitioners before us in these cases falls within this
category, and in the absence of briefing by a party or parties whose rights would
be affected by such a determination, we conclude it would be inappropriate to
address that issue in these proceedings.

135

In each of the three cases before us, the request for a peremptory writ of

mandate is denied. Each party shall bear its own costs.

GEORGE, C. J.



WE CONCUR:

KENNARD, J.
BAXTER, J.
CHIN, J.
CORRIGAN, J.

136
















CONCURRING OPINION BY KENNARD, J.




When California voters exercise their power of initiative, a simple majority

vote is sufficient to amend any part of the state Constitution. (Cal. Const., art.

XVIII, §§ 3, 4.) To determine whether the voters have validly exercised this

power, a judge must put aside any personal views and apply the law as set forth in

the state Constitution and in this court’s previous decisions. And when the voters

have validly exercised this power, as they did here, a judge must enforce the

Constitution as amended.

One year ago, this court decided that California’s statutory law denying

same-sex couples the right to marry violated the privacy, due process, and equal

protection provisions of our state Constitution as it then read. (In re Marriage

Cases (2008) 43 Cal.4th 757 (Marriage Cases).) I signed the majority opinion in

that case, and I also authored a concurring opinion in which I answered the

argument that the marriage rights of same-sex couples did not present an issue of

constitutional law for this court to decide but instead was essentially a social or

political controversy inappropriate for judicial resolution. In my separate opinion,

I wrote: “Absent a compelling justification, our state government may not deny a

1

right as fundamental as marriage to any segment of society. Whether an

unconstitutional denial of a fundamental right has occurred is not a matter to be

decided by the executive or legislative branch, or by popular vote, but is instead an

issue of constitutional law for resolution by the judicial branch of state

government. Indeed, this court’s decision in Lockyer [v. City and County of San

Francisco (2004) 33 Cal.4th 1055] made it clear that the courts alone must decide

whether excluding individuals from marriage because of sexual orientation can be

reconciled with our state Constitution’s equal protection guarantee. (Lockyer,

supra, 33 Cal.4th at pp. 1068-1069.) The court today discharges its constitutional

obligation by resolving that issue.” (Marriage Cases, supra, 43 Cal.4th at p. 860

(conc. opn. of Kennard, J.).) My view on this issue has not changed: Interpreting

and enforcing the state Constitution is a judicial responsibility, and the judiciary’s

duty to exercise this authority is particularly important and grave when

constitutionally guaranteed rights and freedoms are at stake. What has changed,

however, is the state Constitution that this court interpreted and enforced in the

Marriage Cases.

Shortly after this court’s decision in the Marriage Cases, supra, 43 Cal.4th

757, California’s voters by initiative changed the text of our state Constitution by

adding a new section 7.5 to article I. It reads: “Only marriage between a man and

a woman is valid or recognized in California.” The main issue before the court

here is the validity of that alteration in the language of our state’s fundamental

charter, which expressly recognizes the people’s right to enact constitutional

amendments by initiative (Cal. Const., art. II, § 8, subd. (a)).

Although the people through the initiative power may not change this

court’s interpretation of language in the state Constitution, they may change the

constitutional language itself, and thereby enlarge or reduce the personal rights

that the state Constitution as so amended will thereafter guarantee and protect.

2

The difference between interpretation and alteration is the difference between the

judicial and legislative powers. Interpretation of existing statutory and

constitutional provisions is a fundamental power of the judicial branch, while

alteration of existing statutory and constitutional provisions — by addition,

deletion, or modification — is a fundamental legislative power that the people

may exercise through the initiative process. Although this court’s decision in the

Marriage Cases, supra, 43 Cal.4th 757, remains the final word on the meaning of

the state Constitution as it then read, the people have now used their initiative

power to refashion the wording of the California Constitution and by this means

have altered its substance, and thus its meaning, as of the effective date of the

initiative measure.

For the reasons explained in the majority opinion, petitioners have failed to

establish any legal basis to invalidate the initiative measure that added section 7.5

to article I of our state Constitution. Because it did not fundamentally alter

California’s state governmental plan, this initiative measure could validly be

enacted by the procedures prescribed for constitutional amendments rather than

the more rigorous procedures prescribed for constitutional revisions. (See Cal.

Const., art. XVIII, §§ 1-4.) Because it does not restrict or impair this court’s

authority to interpret and enforce the state Constitution, the initiative measure does

not violate the separation of powers doctrine. And, contrary to the Attorney

General’s contention, the state Constitution does not prohibit constitutional

amendments qualifying or restricting rights that the state Constitution describes as

“inalienable,” nor does it require that such amendments be supported by a

compelling interest.

Unlike the state Constitution that this court interpreted in the Marriage

Cases, supra, 43 Cal.4th 757, the currently existing California Constitution, while

continuing to protect the rights of same-sex couples to form officially recognized

3

family relationships, now restricts marriage to opposite-sex couples. As members

of the judicial branch, the justices of this court have a solemn obligation to

interpret and enforce the entire state Constitution, including that new and valid

voter-enacted restriction. Indeed, in deciding that section 7.5 of article I of the

state Constitution does not invalidate the marriages of same-sex couples

performed before its effective date (see maj. opn., ante, at p. 135), this court has

already begun to discharge its constitutional obligation to interpret and apply that

provision.

With these observations, I concur fully in the court’s opinion authored by

the Chief Justice.

KENNARD, J.

4


















CONCURRING OPINION BY WERDEGAR, J.

I agree with the majority that Proposition 8 (Gen. Elec. (Nov. 4, 2008)) is a

valid amendment to the California Constitution rather than a procedurally

defective revision.1 I reject, however, much of the majority’s analysis. The

majority purports to find in this court’s prior decisions a definition of the term

“revision” — one focused on governmental structure and organization — that

categorically excludes Proposition 8 and thus avoids the daunting task of

reconciling with our constitutional tradition a voter initiative clearly motivated at

least in part by group bias. In fact our prior decisions do not establish the

majority’s definition, nor does it find support in the text or history of the

Constitution. The drafters of our Constitution never imagined, nor would they


1

I also agree with the majority that Proposition 8 affects only nomenclature

and not the other rights associated with marriage, does not invalidate same-sex
marriages already in existence when the initiative took effect, and does not change
the rule that laws discriminating on the basis of sexual orientation — a suspect
classification — must survive the highest level of scrutiny under the state equal
protection clause. (Cal. Const., art. I, § 7, subd. (a); see In re Marriage Cases
(2008) 43 Cal.4th 757, 840-841 (Marriage Cases).)

1

have approved, a rule that gives the foundational principles of social organization

in free societies, such as equal protection, less protection from hasty, unconsidered

change than principles of governmental organization.

I

The majority’s lengthy review of our prior cases on the subject (maj. opn.,

ante, at pp. 53-84) culminates in this conclusion: “[T]he numerous past decisions

of this court that have addressed this issue all have indicated that the type of

measure that may constitute a revision of the California Constitution is one that

makes ‘far reaching changes in the nature of our basic governmental plan

[citation], or, stated in slightly different terms, that ‘substantially alter[s] the basic

governmental framework set forth in our Constitution.’ ” (Maj. opn., ante, at

p. 85, quoting Amador Valley Joint Union High Sch. Dist. v. State Bd. of

Equalization (1978) 22 Cal.3d 208, 223, and Legislature v. Eu (1991) 54 Cal.3d

492, 510, italics added in maj. opn.) This is wrong. In fact, until today the court

has gone only so far as to say that “a qualitative revision includes one that

involves a change in the basic plan of California government, i.e., a change in its

fundamental structure or the foundational powers of its branches.” (Legislature v.

Eu, supra, at p. 509, italics added.) Today, the majority changes “includes” to

is,” thus foreclosing other possibilities.

Until today, the court has never held that a constitutional initiative was an

amendment rather than a revision because it affected only individual rights rather

than governmental organization. One reads in the opinion that “a number of our

past amendment/revision decisions have involved initiative measures that made

very important substantive changes in fundamental state constitutional principles

such as the right not to be subjected to cruel or unusual punishment ([People v.]

Frierson [(1979)] 25 Cal.3d 142) and the right to be protected against unlawful

searches and seizures ([In re] Lance W. [(1985)] 37 Cal.3d 873) — initiative

2

measures that, like the current Proposition 8, cut back on the greater level of

protection afforded by preceding court decisions and were challenged as

constitutional revisions on the ground that the constitutional changes they effected

deprived individuals of important state constitutional protections they previously

enjoyed and left courts unable to fully protect such rights.” (Maj. opn., ante, at

pp. 87-88, italics added.) Certainly the initiatives at issue in Frierson and Lance

W. made “important substantive changes” in the rights of criminal defendants.

Contrary to the italicized portion of the statement, however, the challengers in

those cases contended the initiatives amounted to revisions not because of their

effect on those rights, but instead because of their effect on the power of the

judicial branch. The defendant in Frierson argued that a 1977 initiative

reinstating the death penalty was a constitutional revision because it impaired the

judiciary’s power to review statutes for constitutionality.2 Amici curiae, who

raised the issue in Lance W., argued that a 1982 initiative limiting the exclusionary

rule in criminal proceedings was a revision because it impaired the judicial

function of fashioning appropriate remedies for violations of constitutional rights.3


2

Specifically, the defendant in People v. Frierson, supra, 25 Cal.3d 142,

argued in his opening brief that “[t]he second sentence of Proposition 17 [Gen.
Elec. (Nov. 7, 1977)] prohibits the judiciary from testing the death penalty against
any state constitutional provision. Removal of judicial review is a significant
change in a principle underlying our system of democratic government and can
only be accomplished by constitutional revision
.” (Italics added.)

3

The State Public Defender, as amicus curiae in In re Lance W., supra, 37

Cal.3d 873, argued in its brief that Proposition 8 (Primary Elec. (June 8, 1982)),
“constitute[d] an improper revision of the California Constitution because it
abrogates the fundamental judicial function of providing appropriate remedies for
violations of constitutional rights.” (Italics added.) Similarly, amicus curiae
California Attorneys for Criminal Justice argued that to interpret the initiative “as
nullifying judicial power to exclude unconstitutionally seized evidence [was] an

(footnote continued on next page)

3

Those are the arguments we addressed.4 We did not in these cases hold, nor have

we before today ever held, that constitutional amendments affecting only

individual liberties are categorically exempt from the procedural requirements for

constitutional revision.

The history of our California Constitution belies any suggestion that the

drafters envisioned or would have approved a rule, such as that announced today,

that affords governmental structure and organization more protection from casual


(footnote continued from previous page)

invitation to eviscerate the inherent power of a coequal branch of government.”
(Italics added.)

4

In People v. Frierson, supra, 25 Cal.3d 142, we noted the defendant’s

argument that the initiative reinstating the death penalty “contemplates ‘removal of
judicial review’
of the death penalty from a carefully built state constitutional
structure, thereby resulting in ‘a significant change in a principle underlying our
system of democratic government and can only be accomplished by constitutional
revision.’ ” (Id., at p. 186, italics added.) Rejecting the argument, we concluded
that the initiative “accomplishes no such sweeping result. . . . [W]e retain broad
powers of judicial review
of death sentences to assure that each sentence has been
properly and legally imposed and to safeguard against arbitrary or disproportionate
treatment. In addition, we possess unrestricted authority to measure and appraise
the constitutionality of the death penalty under the federal Constitution . . . .” (Id.,
at p. 187, italics added.)


Similarly, we concluded in In re Lance W., supra, 37 Cal.3d 873, that

“[t]he restriction on judicial authority to fashion nonstatutory rules of evidence or
procedure governing admission of unlawfully seized evidence does not, either
qualitatively or quantitatively, ‘accomplish such far reaching changes in the
nature of [judicial authority] as to amount to a revision’ of the Constitution
.” (Id.,
at p. 891, second brackets in original, italics added.) Likewise, “[t]he adoption of
section [28, subdivision (d), of article I] which affects only one incident of that
guarantee of freedom from unlawful search and seizure, a judicially created
remedy for violation of the guarantee, 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 within the contemplation of article XVIII
.” (In re Lance W., supra, at
p. 892, italics added.)

4

amendment than civil liberties. The delegates to the 1849 constitutional

convention recognized that “government was instituted for the protection of

minorities,” and that “[t]he majority of any community is the party to be governed;

the restrictions of law are interposed between them and the weaker party; they are

to be restrained from infringing upon the rights of the minority.” (Browne, Rep.

of the Debates in Convention of Cal. on Formation of State Const. (1850) p. 22

[remarks of delegate William Gwin].)5 Similarly, the delegates to the second

constitutional convention in 1878-1879 well understood the charter they were

drafting would provide the only effective protection for civil liberties. The initial

draft of the 1879 Constitution, in a provision ultimately rejected, would expressly

have looked to the federal Constitution for this purpose by declaring “that the U.S.

Constitution was ‘the great charter of our liberties.’ Not so, cried delegate

[Horace] Rolfe, for ‘we had State charters before there was any Constitution of the

United States.’ . . . Even the conservative delegates conceded that reliance on the

federal Constitution as the principal author of liberties was ‘a mistake historically,

a mistake in law, and it is a blunder all around.’ Thus, the convention’s refusal to

label the federal Constitution ‘the great charter of our liberties’ provided a clear

indicator ‘that the idea of rights rooted in the state’s own constitution was a robust

one’ . . . .” (Grodin et al., The Cal. State Constitution: A Reference Guide (1993)


5

The occasion for Gwin’s remarks was to persuade the minority, native

Californian, Spanish-speaking delegates to join the majority, recently immigrated,
English-speaking delegates in the effort to draft a state constitution. “Never in the
history of the world did a similar convention come together. They were there to
form a state out of unorganized territory; out of territory only lately wrested from a
subjugated people, who were elected to assist in framing a constitution in
conformity with the political view of the conquerors. These native delegates were
averse to the change about to be made.” (23 Bancroft’s Works, History of
California, vol. VI, 1848-1859 (1970) p. 284.)

5

p. 15, fns. omitted, quoting Willis & Stockton, Debates and Proceedings, Cal.

Const. Convention 1878–1879, pp. 237-243, 1182.) The delegates, moreover,

were suspicious of government to a degree that scholars have described as

“generalized distrust.” (Grodin et al., supra, at pp. 14-15.) The task on which

these delegates embarked was to create a legal structure for a society, not just for a

government. To conclude they intended to protect individual liberties less

jealously, and to give them less permanence, than the forms of governmental

organization and structure is unsupportable.

The Constitution does not define the terms “revision” and “amendment” (Cal.

Const., art. XVIII, §§ 1, 4), but we found these plain English words clear enough

when we first considered them in 1894, within the memory of living delegates to

the 1878-1879 constitutional convention. (Livermore v. Waite (1894) 102 Cal.

113.) We wrote then that “[t]he 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.” (Id., at pp. 118-119.) In other words, a revision is a more

substantial or extensive change, an amendment a less substantial or extensive one.

In the years following Livermore v. Waite, experience with the initiative process

led us to recognize that a single, concise change proposed as an amendment could

have an extensive, revisional effect on the Constitution. (McFadden v. Jordan

(1948) 32 Cal.2d 330, 345-346.) Thus we speak today of both “qualitative” and

“quantitative” revisions. (Amador Valley Joint Union High Sch. Dist. v. State Bd.

6

of Equalization, supra, 22 Cal.3d 208, 223.) Yet it remains true that the scope of

the change, and not its subject matter, is the point of distinction.

The majority seems to agree that scope, not subject matter, is the

determinative point. (Maj. opn., ante, at p. 94.) Noting that the California

Constitution, unlike those of some other states, places no express subject-matter

limitations on amendments, the majority writes that “[t]his 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.” (Maj. opn., ante, at p. 11.) Ironically,

without the support of an explicit limiting provision, the majority in effect engrafts

just such a subject-matter restriction onto the Constitution with its limiting

definition of what constitutes a revision. Rejecting petitioners’ arguments that the

voters may not use the amendment process to restrict individual liberties and must

proceed by way of revision, the majority concludes that compliance with the

revision procedures is mandatory only for changes affecting governmental

organization and structure.

The majority opinion also reflects confusion about the meaning of “scope” in

this context. A revision can inhere in a change of sufficient scope, not just to the

whole Constitution, but also to one of its foundational principles. The procedural

requirements for constitutional revisions were intended to preserve both “the

substantial entirety of the instrument” and “the underlying principles upon which

it rests . . . .” (Livermore v. Waite, supra, 102 Cal. 113, 118, italics added.) Our

decisions embody this understanding. The provision of Proposition 115 (Primary

Elec. (June 5, 1990)) that we struck down as a qualitative revision in Raven v.

Deukmejian (1990) 52 Cal.3d 336 affected not the whole Constitution but only a

single principle — judicial independence. But the scope of the measure’s “attack

on state court authority” was “broad.” (Raven v. Deukmejian, supra, at p. 355.) In

7

contrast, we upheld amendments that impacted judicial power less extensively in

In re Lance W., supra, 37 Cal.3d 873, 891, and People v. Frierson, supra, 25

Cal.3d 142, 186-187. Accordingly, scope is the important point. But just as an

amendment of sufficient scope to a single principle as important as judicial power

can be a revision, even though it leaves the remainder of the Constitution

untouched, so too, in my view, can be an amendment of sufficient scope to a

foundational principle of individual liberty in our free society, such as equal

protection.6

II

The question before us then, as I would pose it, is whether Proposition 8

accomplishes a change of sufficient scope in a foundational principle of individual

liberty as to amount to a constitutional revision. Certainly Proposition 8 affects

the principle of equal protection. The initiative, just like the identically worded

statute (Fam. Code, § 308.5) we confronted in the Marriage Cases, supra, 43

Cal.4th 757, “impinges upon the right of [same-sex] couples to have their family

relationship accorded respect and dignity equal to that accorded the family

relationship of opposite-sex couples.” (Id., at p. 845.) Proposition 8 has not,


6

The majority opinion contends I have simply “embrace[d] petitioners’

proposed interpretation of the relevant California precedent.” (Maj. opn., ante, at
p. 87.) To the extent the majority opinion means that I agree with petitioners that
the relevant precedent is of limited effect and adopts no categorical “governmental
structure” requirement for constitutional revisions, it is correct. To the extent it
implies more than that, it is incorrect. Petitioners have argued that changes to
certain fundamental rights categorically may be made only through the revision
process. Unlike petitioners — and the majority as well — I think it clear we have
no license to engraft onto the definition of a revision or amendment any
categorical limitation the drafters did not see fit to include.

8

however, in my view, by this impingement brought about such a broad change in

the principle of equal protection as to amount to a constitutional revision.

In the Marriage Cases, supra, 43 Cal.4th 757, this court determined that the

California Constitution requires full equality for same-sex and opposite-sex

couples. Proposition 8, as construed by this court, reflects the voters’ rejection of

one aspect of the Marriage Cases — our conclusion that the principle of equal

protection requires the state to apply the term “marriage” to legally recognized

same-sex unions. (Id., at pp. 855-856.) Historically, this conclusion was new.

The right of same-sex couples to have the nomenclature of marriage applied to

their unions had been only recently and rarely recognized in American

constitutional law, and it ran counter to a common understanding of the term.

Even today this conclusion is disputed, both here and throughout the United

States.

Disagreement over a single, newly recognized, contested application of a

general principle does not mean the principle is dead. Equal protection’s

continuing vitality in the present context is shown by this court’s unanimous

reaffirmation of its conclusions in the Marriage Cases, supra, 43 Cal.4th 757, that

laws discriminating on the basis of sexual orientation are subject to strict scrutiny,

and that — excepting the name — same-sex couples are entitled to enjoy all of the

rights of marriage. Accordingly, all three branches of state government continue

to have the duty, within their respective spheres of operation, today as before the

passage of Proposition 8, to eliminate the remaining important differences

between marriage and domestic partnership, both in substance7 and perception.8

The measure puts one solution beyond reach by prohibiting the state from naming


7

For example, the requirements that domestic partners be of the same sex

(Fam. Code, § 297, subd. (b)(5)(A)), unless one is over the age of 62 (id., subd.

(footnote continued on next page)

9

future same-sex unions “marriages,” but it does not otherwise affect the state’s

obligation to enforce the equal protection clause by protecting the “fundamental

right . . . of same-sex couples to have their official family relationship accorded

the same dignity, respect, and stature as that accorded to all other official

recognized family relationships.” (Marriage Cases, supra, at p. 830.) For the

state to meet its obligations under the equal protection clause will now be more

difficult, but the obligation remains. For this reason I concur.

WERDEGAR, J.


(footnote continued from previous page)

(b)(5)(B)), and the requirement that both persons have a common residence (id.,
subd. (b)(1)). These are important differences. The first requirement contributes
to the perception that domestic partnerships enjoy a lower status than marriages
(see Marriage Cases, supra, 43 Cal.4th 757, 830-831), and the second requirement
can cause both serious inconvenience and the automatic termination of a domestic
partnership (Fam. Code, § 299.3, subd. (a); Velez v. Smith (2006) 142 Cal.App.4th
1154, 1167-1168; Holguin v. Flores (2004) 122 Cal.App.4th 428, 434).

8

In the Marriage Cases, supra, 43 Cal.4th 757, 845-847, we explained how

the assignment of a name other than “marriage” to same-sex unions creates the
perception of second-class status, perpetuates disparagement based on sexual
orientation, poses practical difficulties for same-sex couples and their children,
and threatens privacy.

10



















CONCURRING AND DISSENTING OPINION BY MORENO, J.




“[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

1

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

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.)

2

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.

2

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.)

3

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.)

4

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 opposite-

sex 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

5

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

6

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

7

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


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)

8

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.

9

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)

10

change the meaning of a revision.4 “[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.


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.

11

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

12

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

13

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

plan.”

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

rights.”

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

14

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 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


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.”

15

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

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)

16

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.

17

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. Jackson

18

(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

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 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


7

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
initiative.

19

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

revision.

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

process.

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

20

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

area?8

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


8

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 Japanese-
Americans 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.)

21

Labor Relations Board (2007) 42 Cal.4th 850, 857-858), its federal counterpart. 9

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.

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


9

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.)

22

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

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)

23

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.

24

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.

MORENO, J.

25

See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Strauss v. Horton, Tyler v. State of California and City & County of SF v. Horton
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding XXX
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.
S168047, S168066 & S168078
Date Filed: May 26, 2009
__________________________________________________________________________________

Court:

County:
Judge:

__________________________________________________________________________________

Attorneys for Petitioner:

National Center for Lesbian Rights, Shannon P. Minter, Christopher F. Stoll, Melanie Rowen, Catherine
Sakimura, Ilona M. Turner, Shin-Ming Wong; Munger, Tolles & Olson, Gregory D. Phillips, Jay M.
Fujitani, David C. Dinielli, Michelle Friedland, Lika C. Miyake, Mark R. Conrad; Lambda Legal Defense
and Education Fund, Jon W. Davidson, Jennifer C. Pizer, Tara Borelli; ACLU Foundation of Northern
California, Alan L. Schlosser, James D. Esseks, Elizabeth O. Gill; ACLU Foundation of Southern
California, Mark Rosenbaum, Clare Pastore, Lori Rifkin; ACLU Foundation of San Diego and Imperial
Counties, David Blair-Loy; Law Office of David C. Codell, David C. Codell; Orrick, Herrington &
Sutcliffe and Stephen V. Bomse for Petitioners Karen L. Strauss, Ruth Borenstein, Brad Jacklin, Dustin
Hergert, Eileen Ma, Suyapa Portillo, Gerardo Marin, Jay Thomas, Sierra North, Celia Carter, Desmund
Wu, James Tolen and Equality California.

Allred, Maroko & Goldberg, Gloria Allred, Michael Maroko and John S. West for Petitioners Robin Tyler,
Diane Olson, Cheri Schroder and Coty Rafaely.

Dennis J. Herrera, City Attorney, Therese M. Stewart, Danny Chou, Kathleen S, Morris, Sherri Sokeland
Kaiser, Vince Chhabria, Erin Bernstein, Tara M. Steeley and Mollie Lee, Deputy City Attorneys, for
Petitioner City and County of San Francisco.

Howard Rice Nemerovski Canady Falk & Rabkin, Jerome B. Falk, Jr., Steven L. Mayer, Amy E. Margolin,
Amy L. Bomse, Adam Polakoff and Michelle S. Ybarra for Petitioners City and County of San Francisco,
Helen Zia, Lia Shigemura, Edward Swanson, Paul Herman, Zoe Dunning, Pam Grey, Marian Martino,
Joanna Cusenza, Bradley Akin, Paul Hill, Emily Griffen, Sage Andersen, Suwanna Kerdkaew and Tina M.
Yun.

Ann Miller Ravel, County Counsel, Tamara Lange, Lead Deputy County Counsel, and Juniper Lesnik for
Petitioner County of Santa Clara.

Rockard J. Delgadillo, City Attorney, Richard H. Llewellyn, Jr., Chief Deputy City Attorney, David
Michaelson, Chief Assistant City Attorney, and Michael J. Bostrom, Deputy City Attorney, for Petitioner
City of Los Angeles.



Page 2 – S168047 – counsel continued

Attorneys for Petitioner:

Raymond G. Fortner, Jr., County Counsel, Leela A. Kapur, Chief Deputy County Counsel, Elizabeth M.
Cortez, Assistant County Counsel, and Judy W. Whitehurst, Deputy County Counsel, for Petitioner County
of Los Angeles.

Richard E. Winnie, County Counsel, Brian E. Washington, Assistant County Counsel, and Claude Kolm,
Deputy County Counsel, for Petitioner County of Alameda.

Patrick K. Faulkner, County Counsel, and Sheila Shah Lichtblau, Deputy County Counsel, for Petitioner
County of Marin.

Michael P. Murphy, County Counsel, Brenda B. Carlson, Chief Deputy County Counsel, and Glenn M.
Levy, Deputy County Counsel, for Petitioner County of San Mateo.

Dana McRae, County Counsel, for Petitioner County of Santa Cruz.

Harvey E. Levine, City Attorney, and Nellie R. Ancel, Deputy City Attorney, for Petitioner City of
Fremont.

Philip D. Kohn, City Attorney, for Petitioner City of Laguna Beach.

John Russo, City Attorney, and Barbara Parker, Chief Assistant City Attorney, for Petitioner City of
Oakland.

Jan I. Goldsmith, City Attorney, and George F. Schaefer, Deputy City Attorney, for Petitioner City of San
Diego.

John G. Barisone, City Attorney, for Petitioner City of Santa Cruz.

Marsha Jones Moutrie, City Attorney, and Joseph Lawrence, Assistant City Attorney, for Petitioner City of
Santa Monica.

Lawrence W. McLaughlin, City Attorney, for Petitioner City of Sebastopol.

Proskauer Rose, Clifford S. Davidson, Lois D. Thompson and Albert C. Valencia for Anti-Defamation
League, Asian Law Caucus, Americans United for Separation of Church and State, Japanese American
Citizens League, Southern California Chinese Lawyers Association, Asian Pacific Islander Legal Outreach,
Legal Aid Foundation of Los Angeles, Bet Tzedek Legal Services, Public Counsel, Orange County Asian
Pacific Islander Community Alliance, National Senior Citizens Law Center, API Equality – LA, API
Equality, API Parents and Friends of Lesbians and Gays (Los Angeles Chapter), Chicana Latina
Foundation, American Jewish Committee, Barbara Jordan/Bayard Rustin Coalition, Asian Pacific
Americans for Progress, BIENESTAR, Asian Law Alliance, National Asian Pacific American Women’s
Forum, Gay Vietnamese Alliance, South Asian Network, Chinese for Affirmative Action, Gay Asian
Pacific Alliance, Gay Asian Pacific Support Network, Korean Resource Center, Asian Communities for
Reproductive Justice, And Marriage for All, Korean Community Center of the East Bay, Advocacy
Coalition of Tulare County for Women and Girls, Asian & Pacific Islander Wellness Center, Filipinos for
Affirmative Action, National Korean American Service & Education Consortium, Asian & Pacific Islander
Family Pride, Ô-Môi, Asian and Pacific Islander American Health Forum, Asian Pacific AIDS Intervention
Team, Asian Pacific Policy & Planning Council and Philippine American Bar Association as Amici Curiae
on behalf of Petitioners.




Page 3 – S168047 – counsel continued

Attorneys for Petitioner:

Ronald Steiner, M. Katherine Baird Darmer , Richard Faulkner, Jenny Carey, Kurt Eggert, John Hall, Jayne
Kacer, Steven Krone, Francine Lipman, Elizabeth L. MacDowell, Henry Noyes; Crowell & Moring,
Steven P. Rice, Deborah E. Arbabi; Ashleigh E. Aitken, Casey Johnson, Michael Penn; Roman E. Darmer
II; Rosanne M. Faul; Sallie Kim; Stephanie Mullen; Alexis Penn-Loya; Emily Samuelsen Quinlan; and
Jeffrey L. Van Hoosear for Chapman Outlaw, Chapman Queer-Straight Alliance, Chapman Feminists and
Chapman SPEAK (Students for Peaceful Empowerment, Action and Knowledge), Wylie Aitken, Deepa
Badrinarayana, Rimvydas Baltaduonis, Marisa Cianciarulo, M. Katherine Baird Darmer, James Doti, Kurt
Eggert, Kelly Graydon, Elizabeth MacDowell, Steven Krone, Francine Lipman, Lynn Mayer, Dale A.
Merrill, Nancy Schultz, Suzanne Soohoo, Ronald Steiner, Sheri Maeda-Akau, Lisa Clark, Sandra L. Hague,
Brain Scott Hamilton, Annie Knight, Mark Lawrence, AJ Place, Erin M. Pullin, Demisia Razo, Tara Riker,
Christopher J. Roach, Gloria Rogers, Zara Ahmed, Sasha Anderson, Elliot Balsley, James E. Blalock,
Claudia Brena, Anne L. Card, Tiffany Chang, Doug Clark, Kimberlee Cyphers, Alexa Hahn-Dunn, Linnea
Esselstrom, Sara Gapasin, Ashley Ann Hanson, Cortney Johnson, Anais Keenon, Breanna Kenyon,
Samantha Kohler, Timothy Lam, Craig Leets, Jr., David Nungary, Michelle Pascucci, Kitty Porter, Regina
Rivera, Brian Rouse, Angela Wilhite, Preston Whitehurst, Emily Wilkinson, Lauren Jessica Wolf, Orange
County Equality Coalition, James Albright, Thomas J. Peterson, Karla Bland, Laura Kanter, Lindsey
Etheridge, John Dumas, James Nowick, Hung Y. Fan, Michael David Feldman, Mary Katherine Holman-
Romero, Deborah Ann Romero-Holman, Jeffrey L. Van Hoosear, Gregory T. McCollum, Heather Ellis,
Rosanne Faul, Sharon Nantell, Judy Gordon, Linda J. May, Dean Erwin Chemerinksy, James D. Herbert,
Cécile Whiting, Dean Inada and Emily Quinlan as Amici Curiae on behalf of Petitioners.

Alice O’Brien; Altshuler Berson, James M. Finberg, Eve H. Cervantez and Barbara J. Chisholm for
California Teachers Association as Amicus Curiae on behalf of Petitioners.

Raoul D. Kennedy and Elizabeth Harlan for Professors of State Constitutional Law Robert F. Williams,
Lawrence Friedman, Vincent M. Bonventre, Daniel Gordon, Ann Lousin, James G. Pope and Jeffrey M.
Shaman as Amici Curiae on behalf of Petitioners.

Joel Franklin; Michelle A. Welsh; Michael W. Stamp; and Amy M. Larson for The Constitutional Law
Center of the Monterey College of Law as Amicus Curiae on behalf of Petitioners.

Prodigylaw.com and Dennis W. Chiu for Steven Mattos, Amor Santiago, Harry Martin and Paul J. Dorian
as Amici Curiae on behalf of Petitioners.

City of West Hollywood Legal Services Division, Michael Jenkins and J. Stephen Lewis for City of
Berkeley, City of Cloverdale, City of Davis, City of Emeryville, Town of Fairfax, County of Humboldt,
City of Long Beach, City of Palm Springs, City of Sacramento, County of Sonoma and City of West
Hollywood as Amici Curiae on behalf of Petitioners.

Bryan Cave, Jonathan Solish, Julie E. Patterson, James C. Pettis, Meghan C. Sherrill, Curt M. Dombek,
Michael B. Zara, Marwa Hassoun and Vanessa A. Sunshine for Pacific Yearly Meeting of the Religious
Society of Friends, Santa Monica Monthly Meeting of the Religious Society of Friends, Orange Grove
Monthly Meeting of the Religious Society of Friends and Claremont Monthly Meeting of the Religious
Society of Friends as Amici Curiae on behalf of Petitioners.








Page 4 – S168047 – counsel continued

Attorneys for Petitioner:

Townsend and Townsend and Crew, Eugene Crew, Timothy R. Cahn, Nancy L. Tompkins, Holly
Gaudreau, David J. Tsai and James D. Kiryakoza for Dr. Frank M. Alton, Immanuel Presbyterian Church,
Netivot Shalom Synagogue, Reverend Dr. Jane Adams Spahr, Reverend Dr. John T. Norris, Reverend Dr.
Glenda Hope, Rabbi David J. Cooper, Kehilla Community Synagogue, Reverend Laura Rose, Reverend Dr.
Janet McCune Edwards, Reverend Kathryn M. Schreiber, Reverend Susan A. Meeter, Mira Vista United
Church of Christ, Nancy McKay, Rabbi Menachem Creditor, Reverend Dr. Paul Tellstrom, Irvine United
Congregational Church, Covenant Network of Presbyterians and More Light Presbyterians as Amici Curiae
on behalf of Petitioners.

Gibson, Dunn & Crutcher, Frederick Brown, Ethan Dettmer, Sara Piepmeier, Rebecca Justice Lazarus,
Enrique Monagas, Kaiponanea Matsumura, Douglas Champion, Heather Richardson, Lauren Eber and
Lindsay Pennington for Current and Former California Legislators as Amici Curiae on behalf of
Petitioners.

Eric Alan Isaacson, Alexandria S. Bernay, Samantha A. Smith, Stacey M. Kaplan; Eisenberg and Hancock,
Jon B. Eisenberg; Winston & Strawn and Peter E. Perkowski for California Council of Churches, Right
Reverend Marc Handley Andrus, Right Reverend J. Jon Bruno, The General Synod of the United Church of
Christ, Northern California Nevada Conference of the United Church of Christ, Southern California
Nevada Conference of the United Church of Christ, Progressive Jewish Alliance, Unitarian Universalist
Association of Congregations and Unitarian Universalist Legislative Ministry California as Amici Curiae
on behalf of Petitioners.

Dickstein Shapiro and Cassandra S. Franklin for Faith in America, Inc, as Amicus Curiae on behalf of
Petitioners.

Troy M. Yoshino and Gonzalo C. Martinez for San Francisco La Raza Lawyers Association as Amicus
Curiae on behalf of Petitioners.

Edward P. Howard; Chapman, Popik & White, Susan M. Popik, Merri A. Baldwin, Raquel A. Lacayo-
Valle; Cooley Godward Kronish, Gordon C. Atkinson, Craig C. Daniel, Kyle C. Wong, Erin L. Dominguez
and Daniel R. Redman for Professor Karl M. Manheim as Amicus Curiae on behalf of Petitioners.

Shay Aaron Gilmore; Hoenningerlaw and Jo Hoenninger for Marriage Equality USA as Amicus Curiae on
behalf of Petitioners.

James T. Linford as Amicus Curiae on behalf of Petitioners.

Perkins Coie, John S. Rossiter, Kirk A. Dublin, Jason A. Yurasek, Joren S. Bass, Geraldine M. Alexis,
Farschad Farzan, Troy P. Sauro, Philip A. Leider, Gigi C. Hoang, Mamta Ahluwalia, David P. Chiappetta,
Kaycie L. Wall and Liling Poh for Human Rights Watch, Human Rights Watch California Committee
North and Human Rights Watch California Committee South as Amici Curiae on behalf of Petitioners.

Stephen Kent Ehat for Professors of Law as Amicus Curiae on behalf of Petitioners.

Law Offices of Stephan C. Volker, Stephan C. Volker and Joshua A. H. Harris for John Emmanuel
Domine, Bradley Eric Aouizerat, Betsy Jo Levine and Lisa Lynn Brand as Amici Curiae on behalf of
Petitioners.







Page 5 – S168047 – counsel continued

Attorneys for Petitioner:

Tobias Barrington Wolff; Bingham McCutchen, Raymond C. Marshall; Julie Su, Karin Wang; Eva
Patterson, Kimberly Thomas Rapp; Nancy Ramirez, Cynthia Valenzuela Dixon; and Holly A. Thomas for
Asian Pacific American Legal Center, California State Conference of the NAACP, Equal Justice Society,
Mexican American Legal Defense and Educational Fund, NAACP Legal Defense and Educational Fund,
Inc., and Southern Christian Leadership Conference of Greater Los Angeles as Amici Curiae on behalf of
Petitioners.

Robert Lott for Zakary Akin, Naomi Canchela, Terrence Fong, Jessica Hirschfelder, Adrienne Loo,
Carolyn Lott, Robert Lott, Quang Nguyen, Agata Opalach, Jeff Pilisuk, Shalini Ramachandran, Vidhya
Ramachandran, Joseph Robinson, Lee Schneider and Nathan Wilcox as Amici Curiae on behalf of
Petitioners.

Lieff, Cabraser, Heimann & Bernstein, Elizabeth J. Cabraser, Kelly M. Dermody and Allison S. Elgart for
Alameda County Bar Association, Bar Association of San Francisco, Los Angeles County Bar Association,
Marin County Bar Association, Santa Clara County Bar Association, AIDS Legal Referral Panel, Asian
American Bar Association of the Greater Bay Area, Asian American Justice Center, Asian Pacific
American Bar Association of Los Angeles County, Bay Area Lawyers for Individual Freedom, California
Employment Lawyers Association, California Rural Legal Assistance, Inc., Central California Legal
Services, Inc., Charles Houston Bar Association, Consumer Attorneys of San Diego, East Bay La Raza
Lawyers Association, Fred T. Korematsu Center for Law and Equality, Gay & Lesbian Advocates &
Defenders, Impact Fund, Japanese American Bar Association of Greater Los Angeles, Korean American
Bar Association of Northern California, Korean American Bar Association of Southern California, Latina
Lawyers Bar Association, Law Foundation of Silicon Valley, Lawyers’ Club of San Francisco, Lawyers’
Committee for Civil Rights of the San Francisco Bar Area, Legal Aid Society-Employment Law Center,
Lesbian and Gay Lawyers Association of Los Angeles, Mexican American Bar Association, Minority Bar
Coalition, National LGBT Bar Association, National Asian Pacific American Bar Association, National
Lawyers Guild San Francisco Bay Area Chapter, Public Justice, Queen’s Bench Bar Association of the San
Francisco Bay Area, San Francisco Trial Lawyers Association, South Asian Bar Association of Northern
California, South Asian Bar Association of San Diego, Tom Homann Law Association and Transgender
Law Center as Amici Curiae on behalf of Petitioners.

Paul, Weiss, Rifkind, Wharton & Garrison, Walter Rieman and Roberta A. Kaplan for C. Edwin Baker,
Robert A. Burt and Kermit Roosevelt III as Amici Curiae on behalf of Petitioners.

Brune & Richard, Laurie Edelstein, Randall T. Kim and Thomas J. Ringer for William N. Eskridge, Jr., and
Bruce E. Cain as Amici Curiae on behalf of Petitioners.

Courtney G. Joslin and Michael S. Wald for Professors of Family Law Scott Altmann, R. Richard Banks,
Sarah Rigdon Bensinger, Grace Ganz Blumberg, Janet Bowermaster, Carol S. Bruch, Patricia A. Cain, Jan
C. Costello, Barbara J. Cox, Jay Folberg, Deborah L. Forman, Joan H. Hollinger, Lisa Ikemoto, Courtney
G. Joslin, Herma Hill Kay, Lawrence Levine, Jean C. Love, Maya Manian, Mary Ann Mason, Anthony
Miller, Melissa Murray, Patti Paniccia, Shelley Ross Saxer, E. Gary Spitko, Michael S. Wald, D. Kelly
Weisberg, Lois Weithorn and Michael Zamperini as Amici Curiae on behalf of Petitioners.

Steven Meiers as Amicus Curiae on behalf of Petitioners.







Page 6 – S168047 – counsel continued

Attorneys for Petitioner:

Hastings Civil Justice Clinic, Donna M. Ryu; Morrison & Foerster, Lawrence R. Katzin, Dorothy L.
Fernandez, Scott M. Reiber, Bethany Lobo and Samuel J. Boone-Lutz for Constitutional and Civil Rights
Law Professors as Amici Curiae on behalf of Petitioners.

Law Offices of Lawrence A. Organ, Lawrence A. Organ and Meghan A. Corman for The Civil Rights
Forum as Amicus Curiae on behalf of Petitioners.

Paul & Hanley, J. Rae Lovko and Jason E. Hasley as Amici Curiae on behalf of Petitioners.

Leslie Ellen Shear; Katherine E. Stoner; Garrett C. Dailey; and Shane R. Ford for Association of Certified
Family Law Specialists and American Academy of Matrimonial Lawyers, Northern California Chapter as
Amici Curiae on behalf of Petitioners.

Pillsbury Winthrop Shaw Pittman, Kevin M. Fong and Alice K. M. Hayashi for League of Women Voters
of California as Amicus Curiae on behalf of Petitioners.

Vincent H. Chieffo, Philippe A. Phaneuf, Dennis J. Rasor, Marc B. Koenigsberg, Alexandra Aquino-Fike;
Jason H. Farber; Dewey & LeBoeuf, Jonathan A. Damon, Dean Hansell, Todd L. Padnos, Benjamin M.
Heuer, Ryan K. Tyndall and Mark M. Rabuano for San Francisco Chamber of Commerce, Google, Inc., H5
and Levi Strauss & Co., as Amici Curiae on behalf of Petitioners.

Greines, Martin, Stein & Richland, Irving Greines, Cynthia E. Tobisman and Jennifer C. Yang for Beverly
Hills Bar Association, California Women Lawyers, Women Lawyers Association of Los Angeles and
Women Lawyers of Sacramento as Amici Curiae on behalf of Petitioners.

Sullivan & Cromwell, Jason de Bretteville, Robert A. Sacks, Edward E. Johnson, Stacey R. Friedman,
Maura E. Miller and David A. Castleman for Our Family Coalition and COLAGE as Amici Curiae on
behalf of Petitioners.

Bate, Peterson, Deacon, Zinn & Young, Harry A. Zinn and Lester F. Aponte for Love Honor Cherish as
Amicus Curiae on behalf of Petitioners.

Farella Braun + Martel, Grace K. Won, David K. Ismay, Brett R. Wheeler and Julie Wahlstrand for
Children’s Law Center of Los Angeles, Family Equality Council, Gay, Lesbian, Bisexual, and Transgender
Therapists Association, Human Rights Campaign, Human Rights Campaign Foundation, Kids in Common,
Legal Services for Children, National Black Justice Coalition, National Center for Youth Law, National
Gay and Lesbian Task Force Foundation, Parents, Families and Friends of Lesbians and Gays, Inc., and
San Francisco Court Appointed Special Advocates as Amici Curiae on behalf of Petitioners.

Paul, Hastings, Janofsky & Walker, Eve Coddon, Jeffrey S. Haber, James W. Gilliam, Sean D. Unger,
Kimberley A. Donohue, Eleanor K. Mercado and Stephen B. Kinnaird for Billy DeFrank LGBT
Community Center, L.A. Gay & Lesbian Center, Pacific Pride Foundation, Sacramento Gay & Lesbian
Center, San Diego Lesbian, Gay, Bisexual, Transgender Community Center, San Francisco LGBT
Community Center, Santa Cruz County Lesbian, Gay, Bisexual and Transgender Community Center and
The Center Orange County as Amici Curiae on behalf of Petitioners.

Steptoe & Johnson, Rebecca Edelson, Robbin L. Itkin, Katherine C. Piper, Colleen O’Brien and Matthew
A. Williams for California National Organization for Women, National Organization for Women and
Feminist Majority Foundation as Amici Curiae on behalf of Petitioners.




Page 7 – S168047 – counsel continued

Attorneys for Petitioner:

S. Michelle May for Sacramento Lawyers for Equality of Gays and Lesbians as Amicus Curiae on behalf of
Petitioners.

Irell & Manella, Laura W. Brill, Moez M. Kaba, Richard M. Simon, Mark A. Kressel; Irma D. Herrera,
Lisa J. Leebove; Vicky Barker; Rebecca Connolly, Sara Sturtevant, Emily Trexel; Nadia P. Bermudez;
Julie F. Kay; Lisa Horowitz and Margaret B. Drew for Concerned with Gender Equality, Equal Rights
Advocates, California Women’s Law Center, Women Lawyers of Santa Cruz County, Lawyer’s Club of
San Diego, Legal Momentum and National Association of Women Lawyers as Amici Curiae on behalf of
Petitioners.

Phalen G. Hurewitz and Mary K. Lindsay for Jewish Family Service of Los Angeles as Amicus Curiae on
behalf of Petitioners.

Mark S. Shirilau as Amicus Curiae on behalf of Petitioners.

Weinberg, Roger & Rosenfeld, William A. Sokol, David A. Rosenfeld and John Plotz for California
Federation of Labor, AFL-CIO, National Federation of Federal Employees, Screen Actors Guild, Unite
Here!, Alameda Labor Council, AFL-CIO, Fresno-Madera-Tulare-Kings Counties Central Labor Council,
AFL-CIO, Los Angeles County Federation of Labor, AFL-CIO, Sacramento Central Labor Council, AFL-
CIO, San Mateo County Central Labor Council, AFL-CIO, San Francisco Labor Council, AFL-CIO, South
Bay Labor Council, AFL-CIO, California Federation of Teachers, American Federation of Teachers, AFL-
CIO, California Faculty Association, California Nurses Association/National Nurses Organizing
Committee, American Federation of State, County, and Municipal Employees, District Council 57, AFL-
CIO, American Federation of State, County, and Municipal Employees, Local 2019, AFL-CIO, American
Federation of State, County, and Municipal Employees, Local 2428, AFL-CIO, American Federation of
State, County, and Municipal Employees, Local 3299, AFL-CIO, American Federation of State, County,
and Municipal Employees, Local 3916, AFL-CIO, American Federation of Teachers, Local 6119, Compton
Council of Classified Employees, AFL-CIO, American Federation of Teachers, Local 6157, San
Jose/Evergreen Faculty Association, AFL-CIO, El Camino College Federation of Teachers, Local 1388,
California Federation of Teachers, American Federation of Teachers, AFL-CIO, United Educators of San
Francisco, AFT/CFT Local 61, AFL-CIO, NEA/CTA, University Council-American Federation of
Teachers, Association of Flight Attendants-CWA, Communications Workers of America District 9, AFL-
CIO, Association of Flight Attendants-CWA, Council 97, Association of Flight Attendants-CWA, Council
99, Communications Workers of America, Local 9000, AFL-CIO, Communications Workers of America,
Local 9503, AFL-CIO, Communications Workers of America, Local 9505, AFL-CIO, Communications
Workers of America, Local 9421, AFL-CIO, Communications Workers of America, Local 9575, AFL-
CIO, District Council of Ironworkers of the State of California and Vicinity, Jewish Labor Committee
Western Region, Maintenance Cooperation Trust Fund, National Federation of Federal Employees, Local
1450, Operative Plasterers’ and Cement Masons’ Local 300, AFL-CIO, Operative Plasterers’ and Cement
Masons’ Local 400, AFL-CIO, Pride at Work, AFL-CIO, SEIU California State Council, SEIU Local 521,
SEIU Local 721, SEIU Local 1000, SEIU Local 1021, SEIU Local 1877, SEIU United Healthcare Workers
West, Teamsters Joint Council 7, International Brotherhood of Teamsters, Teamsters Local 853,
International Brotherhood of Teamsters, United Food and Commercial Workers, Local 5, Unite Here Local
19, United Steelworkers, Local 5, Martinez, CA and University Professional and Technical Employees
Communications Workers of America, Local 9119, AFL-CIO, as Amici Curiae on behalf of Petitioners.

T. M. Reverend Messiah for The Church of the Messiah as Amicus Curiae on behalf of Petitioners.






Page 8 – S168047 – counsel continued

Attorney for Petitioners:

Michael J. McDermott as Amicus Curiae on behalf of Petitioners.

__________________________________________________________________________________

Attorneys for Interveners:

Kenneth W. Starr; Law Offices of Andrew P. Pugno and Andrew P. Pugno for Interveners.

James Joseph Lynch, Jr., for Margie Reilly as Amicus Curiae on behalf of Interveners.

Sweeney & Greene, James F. Sweeney; The Beckett Fund for Religious Liberty, Eric Rassbach, Luke
Goodrich and Lori Windham for The California Catholic Conference, The Seventh-Day Adventist Church
State Council, The United States Conference of Catholic Bishops and The Union of Orthodox Jewish
Congregations of America as Amici Curiae on behalf of Interveners.

Angela C. Thompson and Patrick Gillen for Fidelis Center for Law and Policy as Amicus Curiae on behalf
of Interveners.

Alliance Defense Fund, Timothy Chandler, Benjamin W. Bull, Brian W. Raum and James A. Campbell for
Family Research Council as Amicus Curiae on behalf of Interveners.

Brad W. Dacus, Kevin T. Snider, Karen D. Milam and Matthew B. McReynolds for Pacific Justice Institute
as Amicus Curiae on behalf of Interveners.

Lawrence J. Joseph for Eagle Forum Education & Legal Defense Fund as Amicus Curiae on behalf of
Interveners.

Institute for Marriage and Public Policy, Joshua K. Baker; Marriage Law Foundation and William C.
Duncan for National Organization for Marriage California as Amicus Curiae on behalf of Interveners.

Law Offices of Charles S. LiMandri, Charles S. LiMandri; Bopp, Coleson & Bostrom, James Bopp, Jr.,
Anita Y. Woudenberg and Sarah E. Troupis for Catholic Answers as Amicus Curiae on behalf of
Interveners.

Chavez-Ochoa Law Offices, Brian R. Chavez-Ochoa; and Vincent P. McCarthy for American Center for
Law & Justice and Three Members of the United States Congress as Amici Curiae on behalf of Interveners.

Liberty Counsel and Mary E. McAlister for Campaign for California Families as Amicus Curiae on behalf
of Interveners.
__________________________________________________________________________________

Attorneys for Respondents:

Edmund G. Brown, Jr., Attorney General, Manuel M. Medeiros, State Solicitor General, David S. Chaney,
Chief Assistant Attorney General, Christopher E. Krueger, Assistant Attorney General, James M. Humes,
Chief Deputy Attorney General, Kimberly J. Graham and Mark R. Beckington, Deputy Attorneys General,
for Respondents.






Page 9 – S168047 – counsel continued

Attorneys for Respondents:

Samuel Rodrigues as Amicus Curiae on behalf of Respondents.

Eric I. Gutierrez, Steven W. Fitschen and Douglas E. Myers for The National Legal Foundation as Amicus
Curiae on behalf of Respondents.

D. Q. Mariette Do-Nguyen for Kingdom of Heaven as Amicus Curiae on behalf of Respondents.






















Counsel who argued in Supreme Court (not intended for publication with opinion):

Shannon P. Minter
National Center for Lesbian Rights
870 Market Street, Suite 370
San Francisco, CA 94102
(415) 392-6257

Michael Maroko
Allred, Maroko & Goldberg
6300 Wilshire Boulevard, Suite 1500
Los Angeles, CA 90048
(323) 653-6530

Therese M. Stewart
Deputy City Attorney
City Hall, Room234
One Dr. Carlton B. Goodlett Place
San Francisco, CA 94102-4682
(415) 554-4708

Raymond C. Marshall
Bingham McCutchen
Three Embarcadero Center
San Francisco, CA 94111-4067

Christopher E. Krueger
Assistant Attorney General
1300 I Street, Suite125
Sacramento, CA 94244-2550
(916) 445-7385

Kenneth W. Starr
24569 Via De Casa
Malibu, CA 90265-3205
(310) 506-4621




Document Outline

  • I
  • I
  • II

The court issued an order to show cause in Strauss, Tyler, and City and County of San Francisco directing the parties to brief and argue the following issues: (1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (See Cal. Const., art. XVIII, sections 1-4.) (2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution? (3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Tue, 05/26/200946 Cal.4th 364S168047Original Proceeding - Civilclosed; remittitur issued

TYLER v. STATE OF CALIFORNIA (S168066)
SAN FRANCISCO, CITY OF v. HORTON (S168078)


Parties
1Strauss, Karen L. (Petitioner)
Represented by Shannon Minter
National Center for Lesbian Rights
870 Market Street, Suite 370
San Francisco, CA

2Strauss, Karen L. (Petitioner)
Represented by John David Blair-Loy
ACLU Foundation of San Diego & Imperial Counties
P.O. Box 87131
San Diego, CA

3Strauss, Karen L. (Petitioner)
Represented by Stephen V. Bomse
Orrick, Herrington & Sutcliffe, LLP
405 Howard Street
San Francisco, CA

4Strauss, Karen L. (Petitioner)
Represented by Tara Lynn Borelli
Lambda Legal Defense & Education Fund, Inc.
3325 Wilshire Boulevard, Suite 1300
Los Angeles, CA

5Strauss, Karen L. (Petitioner)
Represented by Fred Brian Chase
Lambda Legal Defense & Education Fund, Inc.
3325 Wilshire Boulevard, Suite 1300
Los Angeles, CA

6Strauss, Karen L. (Petitioner)
Represented by David Charles Codell
Law Office of David C. Codell
9200 Sunset Boulevard, Penthouse Two
Los Angeles, CA

7Strauss, Karen L. (Petitioner)
Represented by Mark R. Conrad
Munger Tolles & Olson, LLP
355 S. Grand Avenue, 35th Floor
Los Angeles, CA

8Strauss, Karen L. (Petitioner)
Represented by Jon Warren Davidson
Lambda Legal Defense & Education Fund, Inc.
3325 Wilshire Boulevard, Suite 1300
Los Angeles, CA

9Strauss, Karen L. (Petitioner)
Represented by David Carter Dinielli
Munger Tolles & Olson, LLP
355 S. Grand Avenue, 35th Floor
Los Angeles, CA

10Strauss, Karen L. (Petitioner)
Represented by Michelle Taryn Friedland
Munger Tolles & Olson, LLP
560 Mission Street, 27th Floor
San Francisco, CA

11Strauss, Karen L. (Petitioner)
Represented by Jay Masa Fujitani
Munger Tolles & Olson, LLP
355 S. Grand Avenue, 35th Floor
Los Angeles, CA

12Strauss, Karen L. (Petitioner)
Represented by Elizabeth Olmsted Gill
ACLU Foundation of Northern California, Inc.
39 Drumm Street
San Francisco, CA

13Strauss, Karen L. (Petitioner)
Represented by Lika Cynthia Miyake
Munger, Tolles & Olson, LLP
355 S. Grand Avenue, 35th Floor
Los Angeles, CA

14Strauss, Karen L. (Petitioner)
Represented by Clare Pastore
ACLU Foundation of Southern California, Inc.
1313 W. Eighth Street
Los Angeles, CA

15Strauss, Karen L. (Petitioner)
Represented by Gregory D. Phillips
Munger, Tolles & Olson, LLP
355 S. Grand Avenue, 35th Floor
Los Angeles, CA

16Strauss, Karen L. (Petitioner)
Represented by Jennifer Carol Pizer
Lambda Legal Defense & Education Fund, Inc.
3325 Wilshire Boulevard, Suite 1300
Los Angeles, CA

17Strauss, Karen L. (Petitioner)
Represented by Lori Ellen Rifkin
ACLU Foundation of Southern California, Inc.
1313 W. Eighth Street
Los Angeles, CA

18Strauss, Karen L. (Petitioner)
Represented by Mark D. Rosenbaum
ACLU Foundation of Southern California, Inc.
1313 W. Eighth Street
Los Angeles, CA

19Strauss, Karen L. (Petitioner)
Represented by Melanie Speck Rowen
National Center for Lesbian Rights
870 Market Street, Suite 370
San Francisco, CA

20Strauss, Karen L. (Petitioner)
Represented by Catherine Pualani Sakimura
National Center for Lesbian Rights
870 Market Street, Suite 370
San Francisco, CA

21Strauss, Karen L. (Petitioner)
Represented by Alan L. Schlosser
ACLU Foundation of Northern California, Inc.
39 Drumm Street
San Francisco, CA

22Strauss, Karen L. (Petitioner)
Represented by Christopher Francis Stoll
National Center for Lesbian Rights
870 Market Street, Suite 370
San Francisco, CA

23Strauss, Karen L. (Petitioner)
Represented by Ilona M. Turner
National Center for Lesbian Rights
870 Market Street, Suite 370
San Francisco, CA

24Strauss, Karen L. (Petitioner)
Represented by Shin-Ming Wong
National Center for Lesbian Rights
870 Market Street, Suite 370
San Francisco, CA

25Horton, Mark B. (Respondent)
1615 Capitol Avenue, Suite 73-720
Sacramento, CA 95899

Represented by Kenneth C. Mennemeier
Mennemeier Glassman et al.
980 Ninth Street, Suite 1700
Sacramento, CA

26Borenstein, Ruth (Petitioner)
Represented by Shannon Minter
National Center for Lesbian Rights
870 Market Street, Suite 370
San Francisco, CA

27Borenstein, Ruth (Petitioner)
Represented by John David Blair-Loy
ACLU Foundation of San Diego & Imperial Counties
P.O. Box 87131
San Diego, CA

28Borenstein, Ruth (Petitioner)
Represented by Stephen V. Bomse
Orrick, Herrington & Sutcliffe LLP
405 Howard Street
San Francisco, CA

29Borenstein, Ruth (Petitioner)
Represented by David Charles Codell
Law Office of David C. Codell
9200 Sunset Boulevard, Penthouse Two
Los Angeles, CA

30Borenstein, Ruth (Petitioner)
Represented by Jon Warren Davidson
Lambda Legal Defense & Education Fund, Inc.
3325 Wilshire Boulevard, Suite 1300
Los Angeles, CA

31Borenstein, Ruth (Petitioner)
Represented by Gregory D. Phillips
Munger, Tolles & Olson, LLP
355 S. Grand Avenue, 35th Floor
Los Angeles, CA

32Borenstein, Ruth (Petitioner)
Represented by Mark D. Rosenbaum
ACLU Foundation of Southern California, Inc.
1313 W. Eighth Street
Los Angeles, CA

33Borenstein, Ruth (Petitioner)
Represented by Alan L. Schlosser
ACLU Foundation of Northern California, Inc.
39 Drumm Street
San Francisco, CA

34Jacklin, Brad (Petitioner)
Represented by Shannon Minter
National Center for Lesbian Rights
870 Market Street, Suite 370
San Francisco, CA

35Jacklin, Brad (Petitioner)
Represented by John David Blair-Loy
ACLU Foundation of San Diego & Imperial Counties
P.O. Box 87131
San Diego, CA

36Jacklin, Brad (Petitioner)
Represented by Stephen V. Bomse
Orrick, Herrington & Sutcliffe, LLP
405 Howard Street
San Francisco, CA

37Jacklin, Brad (Petitioner)
Represented by David Charles Codell
Law Office of David C. Codell
9200 Sunset Boulevard, Penthouse Two
Los Angeles, CA

38Jacklin, Brad (Petitioner)
Represented by Jon Warren Davidson
Lambda Legal Defense & Education Fund, Inc.
3325 Wilshire Boulevard, Suite 1300
Los Angeles, CA

39Jacklin, Brad (Petitioner)
Represented by Gregory D. Phillips
Munger Tolles & Olson, LLP
355 S. Grand Avenue, 35th Floor
Los Angeles, CA

40Jacklin, Brad (Petitioner)
Represented by Mark D. Rosenbaum
ACLU Foundation of Southern California, Inc.
1313 W. Eighth Street
Los Angeles, CA

41Jacklin, Brad (Petitioner)
Represented by Alan L. Schlosser
ACLU Foundation of Northern California, Inc.
39 Drumm Street
San Francisco, CA

42Hergert, Dustin (Petitioner)
Represented by Shannon Minter
National Center for Lesbian Rights
870 Market Street, Suite 370
San Francisco, CA

43Hergert, Dustin (Petitioner)
Represented by John David Blair-Loy
ACLU Foundation of San Diego & Imperial Counties
P.O. Box 87131
San Diego, CA

44Hergert, Dustin (Petitioner)
Represented by Stephen V. Bomse
Orrick, Herrington & Sutcliffe, LLP
405 Howard Street
San Francisco, CA

45Hergert, Dustin (Petitioner)
Represented by David Charles Codell
Law Office of David C. Codell
9200 Sunset Boulevard, Penthouse Two
Los Angeles, CA

46Hergert, Dustin (Petitioner)
Represented by Jon Warren Davidson
Lambda Legal Defense & Education Fund, Inc.
3325 Wilshire Boulevard, Suite 1300
Los Angeles, CA

47Hergert, Dustin (Petitioner)
Represented by Gregory D. Phillips
Munger Tolles & Olson, LLP
355 S. Grand Avenue, 35th Floor
Los Angeles, CA

48Hergert, Dustin (Petitioner)
Represented by Mark D. Rosenbaum
ACLU Foundation of Southern California, Inc.
1313 W. Eighth Street
Los Angeles, CA

49Hergert, Dustin (Petitioner)
Represented by Alan L. Schlosser
ACLU Foundation of Northern California, Inc.
39 Drumm Street
San Francisco, CA

50Ma, Eileen (Petitioner)
Represented by Shannon Minter
National Center for Lesbian Rights
870 Market Street, Suite 370
San Francisco, CA

51Ma, Eileen (Petitioner)
Represented by John David Blair-Loy
ACLU Foundation of San Diego & Imperial Counties
P.O. Box 87131
San Diego, CA

52Ma, Eileen (Petitioner)
Represented by Stephen V. Bomse
Orrick, Herrington & Sutcliffe, LLP
405 Howard Street
San Francisco, CA

53Ma, Eileen (Petitioner)
Represented by David Charles Codell
Law Office of David C. Codell
9200 Sunset Boulevard, Penthouse Two
Los Angeles, CA

54Ma, Eileen (Petitioner)
Represented by Jon Warren Davidson
Lambda Legal Defense & Education Fund, Inc.
3325 Wilshire Boulevard, Suite 1300
Los Angeles, CA

55Ma, Eileen (Petitioner)
Represented by Gregory D. Phillips
Munger Tolles & Olson, LLP
355 S. Grand Avenue, 35th Floor
Los Angeles, CA

56Ma, Eileen (Petitioner)
Represented by Mark D. Rosenbaum
ACLU Foundation of Southern California, Inc.
1313 W. Eighth Street
Los Angeles, CA

57Ma, Eileen (Petitioner)
Represented by Alan L. Schlosser
ACLU Foundation of Northern California, Inc.
39 Drumm Street
San Francisco, CA

58Portillo, Suyapa (Petitioner)
Represented by Shannon Minter
National Center for Lesbian Rights
870 Market Street, Suite 370
San Francisco, CA

59Portillo, Suyapa (Petitioner)
Represented by John David Blair-Loy
ACLU Foundation of San Diego & Imperial Counties
P.O. Box 87131
San Diego, CA

60Portillo, Suyapa (Petitioner)
Represented by Stephen V. Bomse
Orrick, Herrington & Sutcliffe, LLP
405 Howard Street
San Francisco, CA

61Portillo, Suyapa (Petitioner)
Represented by David Charles Codell
Law Office of David C. Codell
9200 Sunset Boulevard, Penthouse Two
Los Angeles, CA

62Portillo, Suyapa (Petitioner)
Represented by Jon Warren Davidson
Lambda Legal Defense & Education Fund, Inc.
3325 Wilshire Boulevard, Suite 1300
Los Angeles, CA

63Portillo, Suyapa (Petitioner)
Represented by Gregory D. Phillips
Munger Tolles & Olson, LLP
355 S. Grand Avenue, 35th Floor
Los Angeles, CA

64Portillo, Suyapa (Petitioner)
Represented by Mark D. Rosenbaum
ACLU Foundation of Southern California, Inc.
1313 W. Eighth Street
Los Angeles, CA

65Portillo, Suyapa (Petitioner)
Represented by Alan L. Schlosser
ACLU Foundation of Northern California, Inc.
39 Drumm Street
San Francisco, CA

66Marin, Gerardo (Petitioner)
Represented by Shannon Minter
National Center for Lesbian Rights
870 Market Street, Suite 370
San Francisco, CA

67Marin, Gerardo (Petitioner)
Represented by John David Blair-Loy
ACLU Foundation of San Diego & Imperial Counties
P.O. Box 87131
San Diego, CA

68Marin, Gerardo (Petitioner)
Represented by Stephen V. Bomse
Orrick, Herrington & Sutcliffe, LLP
405 Howard Street
San Francisco, CA

69Marin, Gerardo (Petitioner)
Represented by David Charles Codell
Law Office of David C. Codell
9200 Sunset Boulevard, Penthouse Two
Los Angeles, CA

70Marin, Gerardo (Petitioner)
Represented by Jon Warren Davidson
Lambda Legal Defense & Education Fund, Inc.
3325 Wilshire Boulevard, Suite 1300
Los Angeles, CA

71Marin, Gerardo (Petitioner)
Represented by Gregory D. Phillips
Munger Tolles & Olson, LLP
355 S. Grand Avenue, 35th Floor
Los Angeles, CA

72Marin, Gerardo (Petitioner)
Represented by Mark D. Rosenbaum
ACLU Foundation of Southern California, Inc.
1313 W. Eighth Street
Los Angeles, CA

73Marin, Gerardo (Petitioner)
Represented by Alan L. Schlosser
ACLU Foundation of Northern California, Inc.
39 Drumm Street
San Francisco, CA

74Thomas, Jay (Petitioner)
Represented by Shannon Minter
National Center for Lesbian Rights
870 Market Street, Suite 370
San Francisco, CA

75Thomas, Jay (Petitioner)
Represented by John David Blair-Loy
ACLU Foundation of San Diego & Imperial Counties
P.O. Box 87131
San Diego, CA

76Thomas, Jay (Petitioner)
Represented by Stephen V. Bomse
Orrick, Herrington & Sutcliffe, LLP
405 Howard Street
San Francisco, CA

77Thomas, Jay (Petitioner)
Represented by David Charles Codell
Law Office of David C. Codell
9200 Sunset Boulevard, Penthouse Two
Los Angeles, CA

78Thomas, Jay (Petitioner)
Represented by Jon Warren Davidson
Lambda Legal Defense & Education Fund, Inc.
3325 Wilshire Boulevard, Suite 1300
Los Angeles, CA

79Thomas, Jay (Petitioner)
Represented by Gregory D. Phillips
Munger Tolles & Olson, LLP
355 S. Grand Avenue, 35th Floor
Los Angeles, CA

80Thomas, Jay (Petitioner)
Represented by Mark D. Rosenbaum
ACLU Foundation of Southern California, Inc.
1313 W. Eighth Street
Los Angeles, CA

81Thomas, Jay (Petitioner)
Represented by Alan L. Schlosser
ACLU Foundation of Northern California, Inc.
39 Drumm Street
San Francisco, CA

82North, Sierra (Petitioner)
Represented by Shannon Minter
National Center for Lesbian Rights
870 Market Street, Suite 370
San Francisco, CA

83North, Sierra (Petitioner)
Represented by John David Blair-Loy
ACLU Foundation of San Diego & Imperial Counties
P.O. Box 87131
San Diego, CA

84North, Sierra (Petitioner)
Represented by Stephen V. Bomse
Orrick, Herrington & Sutcliffe, LLP
405 Howard Street
San Francisco, CA

85North, Sierra (Petitioner)
Represented by David Charles Codell
Law Office of David C. Codell
9200 Sunset Boulevard, Penthouse Two
Los Angeles, CA

86North, Sierra (Petitioner)
Represented by Jon Warren Davidson
Lambda Legal Defense & Education Fund, Inc.
3325 Wilshire Boulevard, Suite 1300
Los Angeles, CA

87North, Sierra (Petitioner)
Represented by Gregory D. Phillips
Munger Tolles & Olson, LLP
355 S. Grand Avenue, 35th Floor
Los Angeles, CA

88North, Sierra (Petitioner)
Represented by Mark D. Rosenbaum
ACLU Foundation of Southern California, Inc.
1313 W. Eighth Street
Los Angeles, CA

89North, Sierra (Petitioner)
Represented by Alan L. Schlosser
ACLU Foundation of Northern California, Inc.
39 Drumm Street
San Francisco, CA

90Carter, Celia (Petitioner)
Represented by Shannon Minter
National Center for Lesbian Rights
870 Market Street, Suite 370
San Francisco, CA

91Carter, Celia (Petitioner)
Represented by John David Blair-Loy
ACLU Foundation of San Diego & Imperial Counties
P.O. Box 87131
San Diego, CA

92Carter, Celia (Petitioner)
Represented by Stephen V. Bomse
Orrick, Herrington & Sutcliffe, LLP
405 Howard Street
San Francisco, CA

93Carter, Celia (Petitioner)
Represented by David Charles Codell
Law Office of David C. Codell
9200 Sunset Boulevard, Penthouse Two
Los Angeles, CA

94Carter, Celia (Petitioner)
Represented by Jon Warren Davidson
Lambda Legal Defense & Education Fund, Inc.
3325 Wilshire Boulevard, Suite 1300
Los Angeles, CA

95Carter, Celia (Petitioner)
Represented by Gregory D. Phillips
Munger Tolles & Olson, LLP
355 S. Grand Avenue, 35th Floor
Los Angeles, CA

96Carter, Celia (Petitioner)
Represented by Mark D. Rosenbaum
ACLU Foundation of Southern California, Inc.
1313 W. Eighth Street
Los Angeles, CA

97Carter, Celia (Petitioner)
Represented by Alan L. Schlosser
ACLU Foundation of Northern California, Inc.
39 Drumm Street
San Francisco, CA

98Wu, Desmund (Petitioner)
Represented by Shannon Minter
National Center for Lesbian Rights
870 Market Street, Suite 370
San Francisco, CA

99Wu, Desmund (Petitioner)
Represented by John David Blair-Loy
ACLU Foundation of San Diego & Imperial Counties
P.O. Box 87131
San Diego, CA

100Wu, Desmund (Petitioner)
Represented by Stephen V. Bomse
Orrick, Herrington & Sutcliffe, LLP
405 Howard Street
San Francisco, CA

101Wu, Desmund (Petitioner)
Represented by David Charles Codell
Law Office of David C. Codell
9200 Sunset Boulevard, Penthouse Two
Los Angeles, CA

102Wu, Desmund (Petitioner)
Represented by Jon Warren Davidson
Lambda Legal Defense & Education Fund, Inc.
3325 Wilshire Boulevard, Suite 1300
Los Angeles, CA

103Wu, Desmund (Petitioner)
Represented by Gregory D. Phillips
Munger Tolles & Olson, LLP
355 S. Grand Avenue, 35th Floor
Los Angeles, CA

104Wu, Desmund (Petitioner)
Represented by Mark D. Rosenbaum
ACLU Foundation of Southern California, Inc.
1313 W. Eighth Street
Los Angeles, CA

105Wu, Desmund (Petitioner)
Represented by Alan L. Schlosser
ACLU Foundation of Northern California, Inc.
39 Drumm Street
San Francisco, CA

106Tolen, James (Petitioner)
Represented by Shannon Minter
National Center for Lesbian Rights
870 Market Street, Suite 370
San Francisco, CA

107Tolen, James (Petitioner)
Represented by John David Blair-Loy
ACLU Foundation of San Diego & Imperial Counties
P.O. Box 87131
San Diego, CA

108Tolen, James (Petitioner)
Represented by Stephen V. Bomse
Orrick, Herrington & Sutcliffe, LLP
405 Howard Street
San Francisco, CA

109Tolen, James (Petitioner)
Represented by David Charles Codell
Law Office of David C. Codell
9200 Sunset Boulevard, Penthouse Two
Los Angeles, CA

110Tolen, James (Petitioner)
Represented by Jon Warren Davidson
Lambda Legal Defense & Education Fund, Inc.
3325 Wilshire Boulevard, Suite 1300
Los Angeles, CA

111Tolen, James (Petitioner)
Represented by Gregory D. Phillips
Munger Tolles & Olson, LLP
355 S. Grand Avenue, 35th Floor
Los Angeles, CA

112Tolen, James (Petitioner)
Represented by Mark D. Rosenbaum
ACLU Foundation of Southern California, Inc.
1313 W. Eighth Street
Los Angeles, CA

113Tolen, James (Petitioner)
Represented by Alan L. Schlosser
ACLU Foundation of Northern California, Inc.
39 Drumm Street
San Francisco, CA

114Equality California (Petitioner)
Represented by Shannon Minter
National Center for Lesbian Rights
870 Market Street, Suite 370
San Francisco, CA

115Equality California (Petitioner)
Represented by John David Blair-Loy
ACLU Foundation of San Diego & Imperial Counties
P.O. Box 87131
San Diego, CA

116Equality California (Petitioner)
Represented by Stephen V. Bomse
Orrick, Herrington & Sutcliffe, LLP
405 Howard Street
San Francisco, CA

117Equality California (Petitioner)
Represented by David Charles Codell
Law Office of David C. Codell
9200 Sunset Boulevard, Penthouse Two
Los Angeles, CA

118Equality California (Petitioner)
Represented by Jon Warren Davidson
Lambda Legal Defense & Education Fund, Inc.
3325 Wilshire Boulevard, Suite 1300
Los Angeles, CA

119Equality California (Petitioner)
Represented by Gregory D. Phillips
Munger Tolles & Olson, LLP
355 S. Grand Avenue, 35th Floor
Los Angeles, CA

120Equality California (Petitioner)
Represented by Mark D. Rosenbaum
ACLU Foundation of Southern California, Inc.
1313 W. Eighth Street
Los Angeles, CA

121Equality California (Petitioner)
Represented by Alan L. Schlosser
ACLU Foundation of Northern California, Inc.
39 Drumm Street
San Francisco, CA

122Scott, Linette (Respondent)
Represented by Kenneth C. Mennemeier
Mennemeier Glassman et al.
980 Ninth Street, Suite 1700
Sacramento, CA

123Brown, Edmund G. (Respondent)
Represented by Mark R. Beckington
Office of the Attorney General
1300 "I" Street, Suite 125
P.O. Box 944255
Sacramento, CA

124Brown, Edmund G. (Respondent)
Represented by Christopher Edward Krueger
Office of the Attorney General
1300 "I" Street, Room 125
P.O. Box 942255
Sacramento, CA

125Campaign For California Families (Amicus curiae)
Represented by Mary Elizabeth Mcalister
Attorney at Law
100 Mountain View Road, Suite 2775
Lynchburg, VA

126Pacific Justice Institute (Amicus curiae)
Represented by Matthew Brown Mcreynolds
Pacific Justice Institute
P.O. Box 276600
Sacramento, CA

127Pacific Justice Institute (Amicus curiae)
Represented by Brad W. Dacus
Pacific Justice Institute
9851 Horn Road, Suite 115
Sacramento, CA

128Pacific Justice Institute (Amicus curiae)
Represented by Karen Dean Milam
Attorney at Law
P.O. Box 276600
Sacramento, CA

129Pacific Justice Institute (Amicus curiae)
Represented by Kevin T. Snider
Attorney at Law
P.O. Box 276600
Sacramento, CA

130Hollingsworth, Dennis (Intervener)
Represented by Andrew P. Pugno
Law Offices of Andrew P. Pugno
101 Parkshore Drive, Suite 100
Folsom, CA

131Hollingsworth, Dennis (Intervener)
Represented by Kenneth Winston Starr
Attorney at Law
24569 Via De Casa
Malibu, CA

132Knight, Gail J. (Intervener)
Represented by Andrew P. Pugno
Law Offices of Andrew P. Pugno
101 Parkshore Drive, Suite 100
Folsom, CA

133Knight, Gail J. (Intervener)
Represented by Kenneth Winston Starr
Attorney at Law
24569 Via De Casa
Malibu, CA

134Gutierrez, Martin F. (Intervener)
Represented by Andrew P. Pugno
Law Offices of Andrew P. Pugno
101 Parkshore Drive, Suite 100
Folsom, CA

135Gutierrez, Martin F. (Intervener)
Represented by Kenneth Winston Starr
Attorney at Law
24569 Via De Casa
Malibu, CA

136Tam, Hak-Shing William (Intervener)
Represented by Andrew P. Pugno
Law Offices of Andrew P. Pugno
101 Parkshore Drive, Suite 100
Folsom, CA

137Tam, Hak-Shing William (Intervener)
Represented by Kenneth Winston Starr
Attorney at Law
24569 Via De Casa
Malibu, CA

138Jansson, Mark A. (Intervener)
Represented by Andrew P. Pugno
Law Offices of Andrew P. Pugno
101 Parkshore Drive, Suite 100
Folsom, CA

139Jansson, Mark A. (Intervener)
Represented by Kenneth Winston Starr
Attorney at Law
24569 Via De Casa
Malibu, CA

140Protectmarriage.Com (Intervener)
Represented by Andrew P. Pugno
Law Offices of Andrew P. Pugno
101 Parkshore Drive, Suite 100
Folsom, CA

141Protectmarriage.Com (Intervener)
Represented by Kenneth Winston Starr
Attorney at Law
24569 Via De Casa
Malibu, CA

142American Center For Law & Justice (Amicus curiae)
Represented by Brian Ricardo Chavez-Ochoa
Chavez-Ochoa Law Offices, Inc.
4 Jean Street, Suite 4
Valley Springs, CA

143American Center For Law & Justice (Amicus curiae)
Represented by Vincent P. Mccarthy
American Center for Law & Justice
11 West Chestnut Hill Road
Litchfield, CT

144Sacramento Lawyers For The Equality Of Gays And Lesbians (Amicus curiae)
Represented by S. Michelle May
Attorney at Law
3104 "O" Street, Suite 245
Sacramento, CA

145Sacramento Lawyers For The Equality Of Gays And Lesbians (Amicus curiae)
Represented by Jenny Lynn Darlington-Person
McGeorge School of Law
3200 5th Avenue
Sacramento, CA

146Sacramento Lawyers For The Equality Of Gays And Lesbians (Amicus curiae)
Represented by Patrick Dean Holstine
McDonough Holland & Allen PC
555 Capitol Mall, 9th Floor
Sacramento, CA

147Sacramento Lawyers For The Equality Of Gays And Lesbians (Amicus curiae)
Represented by Mary-Beth Moylan
McGeorge School of Law
3200 5th Avenue
Sacramento, CA

148Alameda County Bar Association,Et Al. (Amicus curiae)
Represented by Kelly M. Dermody
Lieff Cabraser & Heimann
275 Battery St 30th Fl
San Francisco, CA

149Alameda County Bar Association,Et Al. (Amicus curiae)
Represented by Elizabeth Joan Cabraser
Lieff Cabraser & Heimann
275 Battery St #3000
San Francisco, CA

150Alameda County Bar Association,Et Al. (Amicus curiae)
Represented by Allison Stacy Elgart
Attorney at Law
1176A Sanchez Street
San Francisco, CA

151Chinese For Affirmative Action (Intervener)
Represented by Kelly M. Dermody
Lieff Cabraser & Heimann
275 Battery St 30th Fl
San Francisco, CA

152San Francisco La Raza Lawyers Association (Amicus curiae)
Represented by Gonzalo Martinez
Carroll Burdick & McDonough LLP
44 Montgomery Street, suite 400
San Francisco, CA

153San Francisco La Raza Lawyers Association (Amicus curiae)
Represented by Troy Masami Yoshino
Carroll Burdick & McDonough LLP
44 Montgomery Street, Suite 400
San Francisco, CA

154Constitutional Law Center Of The Monterey College Of Law (Amicus curiae)
Represented by Joel Franklin
Attorney at Law
2100 Garden Road, Suite G
Monterey, CA

155Constitutional Law Center Of The Monterey College Of Law (Amicus curiae)
Represented by Amy Marie Larson
Attorney at Law
2100 Garden Road, Suite G
Monterey, CA

156Constitutional Law Center Of The Monterey College Of Law (Amicus curiae)
Represented by Michael W. Stamp
Attorney at Law
479 Pacific Street, Suite 1
Monterey, CA

157Constitutional Law Center Of The Monterey College Of Law (Amicus curiae)
Represented by Michelle A. Welsh
Stoner Welsh & Schmidt
413 Forest Ave.
Pacific Grove, CA

158Labor (Amicus curiae)
Represented by William A. Sokol
Weinberg, Roger & Rosenfeld
1001 Marina Village Parkway, Suite 200
Alameda, CA

159Labor (Amicus curiae)
Represented by David A. Rosenfeld
Weinberg Roger & Rosenfeld
1001 Marina Village Parkway, Suite 200
Alameda, CA

160C.O.L.A.G.E. (Amicus curiae)
Represented by David A. Castleman
Sullivan & Cromwell, LLP
125 Broad Street
New York, NY

161C.O.L.A.G.E. (Amicus curiae)
Represented by Stacey R. Friedman
Sullivan & Cromwell, LLP
125 Broad Street
New York, NY

162C.O.L.A.G.E. (Amicus curiae)
Represented by Maura E. Miller
Sullivan & Cromwell, LLP
125 Broad Street
New York, NY

163Concerned With Gender Equality (Amicus curiae)
Represented by Vicky Linda Barker
California Women's Law Center
6300 Wilshire Boulevard, Suite 980
Los Angeles, CA

164Concerned With Gender Equality (Amicus curiae)
Represented by Nadia Parra Bermudez
Lawyers Club of San Diego
701 B. Street, Suite 374
San Diego, CA

165Concerned With Gender Equality (Amicus curiae)
Represented by Rebecca Connolly
Women Lawyers of Santa Cruz County
P. O. Box 737
Santa Cruz, CA

166Concerned With Gender Equality (Amicus curiae)
Represented by Margaret B. Drew
National Association of Women Lawyers
321 North Clark Street
Chicao, IL

167Concerned With Gender Equality (Amicus curiae)
Represented by Irma D. Herrera
Equal Rights Advocates
1663 Mission Street, Suite 250
San Francisco, CA

168Concerned With Gender Equality (Amicus curiae)
Represented by Moez M. Kaba
Irell & Manella, LLP
1800 Avenue of the Stars, Suite 900
Los Angeles, CA

169Concerned With Gender Equality (Amicus curiae)
Represented by Julie F. Kay
Legal Momentum
395 Hudson Street
New York, NY

170Concerned With Gender Equality (Amicus curiae)
Represented by Mark Andrew Kressel
Irell & Manella, LLP
1800 Avenue of the Stars, Suite 900
Los Angeles, CA

171Concerned With Gender Equality (Amicus curiae)
Represented by Lisa Jennifer Leebove
Equal Rights Advocates
1663 Mission Street, Suite 250
San Francisco, CA

172Concerned With Gender Equality (Amicus curiae)
Represented by Richard Manning Simon
KENDALL BRILL & KLIEGER LLP
10100 Santa Monica Blvd., Suite 1725
Los Angeles, CA

173Concerned With Gender Equality (Amicus curiae)
Represented by Sara Rose Sturtevant
Attorney at Law
PO Box 2682
Aptos, CA

174Concerned With Gender Equality (Amicus curiae)
Represented by Emily Jeanne Trexel
Law Offices Of Madeleine Boriss
905 Cedar St
Santa Cruz, CA

175Concerned With Gender Equality (Amicus curiae)
Represented by Laura Wolfe Brill
KENDALL BRILL & KLIEGER LLP
10100 Santa Monica Blvd., Suite 1725
Los Angeles, CA

176The Church Of The Messiah (Amicus curiae)
attn: T. M. Reverend Messiah
P. O. Box 11111
Marina Del Rey, CA 90295

177Jewish Family Service Of Los Angeles (Amicus curiae)
Represented by Phalen Gilbert Hurewitz
Isaacman Kaufman & Painter
8484 Wilshire Blvd #850
Beverly Hills, CA

178Jewish Family Service Of Los Angeles (Amicus curiae)
Represented by Mary K. Lindsay
Isaacman Kaufman & Painter
8484 Wilshire Boulevard, Suite 850
Beverly Hills, CA

179Mcdermott, Michael J. (Amicus curiae)
7172 Regional, Suite 329
Dublin, CA 94568

180California Council Of Churches (Amicus curiae)
Represented by Eric Alan Isaacson
Coughlin Stoia et al., LLP
655 West Broadway, Suite 1900
San Diego, CA

181California Council Of Churches (Amicus curiae)
Represented by Alexandra Senya Bernay
Coughlin Stoia et al LLP
655 W Broadway #1900
San Diego, CA

182California Council Of Churches (Amicus curiae)
Represented by Jon B. Eisenberg
Eisenberg and Hancock, LLP
1970 Broadway, Suite 1200
Oakland, CA

183California Council Of Churches (Amicus curiae)
Represented by Stacey Marie Kaplan
Coughlin Stoia et al., LLP
655 W Broadway #1900
San Diego, CA

184California Council Of Churches (Amicus curiae)
Represented by Samantha Alane Smith
Coughlin Stoia et al. LLP
655 W Broaday #1900
San Diego, CA

185Right Reverend Marc Handley Andrus (Amicus curiae)
Represented by Alexandra Senya Bernay
Coughlin Stoia et al LLP
655 W Broadway #1900
San Diego, CA

186Right Reverend Marc Handley Andrus (Amicus curiae)
Represented by Jon B. Eisenberg
Eisenberg and Hancock, LLP
1970 Broadway, Suite 1200
Oakland, CA

187Right Reverend Marc Handley Andrus (Amicus curiae)
Represented by Eric Alan Isaacson
Coughlin Stoia et al. LLP
655 West Broadway, Suite 1900
San Diego, CA

188Right Reverend Marc Handley Andrus (Amicus curiae)
Represented by Stacey Marie Kaplan
Coughlin Stoia et al., LLP
655 W Broadway #1900
San Diego, CA

189Right Reverend Marc Handley Andrus (Amicus curiae)
Represented by Samantha Alane Smith
Coughlin Stoia et al. LLP
655 W Broaday #1900
San Diego, CA

190Right Reverend J. Jon Bruno (Amicus curiae)
Represented by Alexandra Senya Bernay
Coughlin Stoia et al LLP
655 W Broadway #1900
San Diego, CA

191Right Reverend J. Jon Bruno (Amicus curiae)
Represented by Jon B. Eisenberg
Eisenberg and Hancock, LLP
1970 Broadway, Suite 1200
Oakland, CA

192Right Reverend J. Jon Bruno (Amicus curiae)
Represented by Eric Alan Isaacson
Coughlin Stoia et al. LLP
655 West Broadway, Suite 1900
San Diego, CA

193Right Reverend J. Jon Bruno (Amicus curiae)
Represented by Stacey Marie Kaplan
Coughlin Stoia et al., LLP
655 W Broadway #1900
San Diego, CA

194Right Reverend J. Jon Bruno (Amicus curiae)
Represented by Samantha Alane Smith
Coughlin Stoia et al. LLP
655 W Broaday #1900
San Diego, CA

195General Synod Of The United Church Of Christ (Amicus curiae)
Represented by Alexandra Senya Bernay
Coughlin Stoia et al LLP
655 W Broadway #1900
San Diego, CA

196General Synod Of The United Church Of Christ (Amicus curiae)
Represented by Jon B. Eisenberg
Eisenberg and Hancock, LLP
1970 Broadway, Suite 1200
Oakland, CA

197General Synod Of The United Church Of Christ (Amicus curiae)
Represented by Eric Alan Isaacson
Coughlin Stoia et al. LLP
655 West Broadway, Suite 1900
San Diego, CA

198General Synod Of The United Church Of Christ (Amicus curiae)
Represented by Stacey Marie Kaplan
Coughlin Stoia et al., LLP
655 W Broadway #1900
San Diego, CA

199General Synod Of The United Church Of Christ (Amicus curiae)
Represented by Samantha Alane Smith
Coughlin Stoia et al. LLP
655 W Broaday #1900
San Diego, CA

200United Church Of Christ (Amicus curiae)
Represented by Alexandra Senya Bernay
Coughlin Stoia et al LLP
655 W Broadway #1900
San Diego, CA

201United Church Of Christ (Amicus curiae)
Represented by Jon B. Eisenberg
Eisenberg and Hancock, LLP
1970 Broadway, Suite 1200
Oakland, CA

202United Church Of Christ (Amicus curiae)
Represented by Eric Alan Isaacson
Coughlin Stoia et al. LLP
655 West Broadway, Suite 1900
San Diego, CA

203United Church Of Christ (Amicus curiae)
Represented by Stacey Marie Kaplan
Coughlin Stoia et al., LLP
655 W Broadway #1900
San Diego, CA

204United Church Of Christ (Amicus curiae)
Represented by Samantha Alane Smith
Coughlin Stoia et al. LLP
655 W Broaday #1900
San Diego, CA

205United Church Of Christ (Amicus curiae)
Represented by Alexandra Senya Bernay
Coughlin Stoia et al LLP
655 W Broadway #1900
San Diego, CA

206United Church Of Christ (Amicus curiae)
Represented by Jon B. Eisenberg
Eisenberg and Hancock, LLP
1970 Broadway, Suite 1200
Oakland, CA

207United Church Of Christ (Amicus curiae)
Represented by Eric Alan Isaacson
Coughlin Stoia et al. LLP
655 West Broadway, Suite 1900
San Diego, CA

208United Church Of Christ (Amicus curiae)
Represented by Stacey Marie Kaplan
Coughlin Stoia et al., LLP
655 W Broadway #1900
San Diego, CA

209United Church Of Christ (Amicus curiae)
Represented by Samantha Alane Smith
Coughlin Stoia et al. LLP
655 W Broaday #1900
San Diego, CA

210Progressive Jewish Alliance (Amicus curiae)
Represented by Alexandra Senya Bernay
Coughlin Stoia et al LLP
655 W Broadway #1900
San Diego, CA

211Progressive Jewish Alliance (Amicus curiae)
Represented by Jon B. Eisenberg
Eisenberg and Hancock, LLP
1970 Broadway, Suite 1200
Oakland, CA

212Progressive Jewish Alliance (Amicus curiae)
Represented by Eric Alan Isaacson
Coughlin Stoia et al. LLP
655 West Broadway, Suite 1900
San Diego, CA

213Progressive Jewish Alliance (Amicus curiae)
Represented by Stacey Marie Kaplan
Coughlin Stoia et al., LLP
655 W Broadway #1900
San Diego, CA

214Progressive Jewish Alliance (Amicus curiae)
Represented by Samantha Alane Smith
Coughlin Stoia et al. LLP
655 W Broaday #1900
San Diego, CA

215Unitarian Universalist Association Of Congregations (Amicus curiae)
Represented by Alexandra Senya Bernay
Coughlin Stoia et al LLP
655 W Broadway #1900
San Diego, CA

216Unitarian Universalist Association Of Congregations (Amicus curiae)
Represented by Jon B. Eisenberg
Eisenberg and Hancock, LLP
1970 Broadway, Suite 1200
Oakland, CA

217Unitarian Universalist Association Of Congregations (Amicus curiae)
Represented by Eric Alan Isaacson
Coughlin Stoia et al. LLP
655 West Broadway, Suite 1900
San Diego, CA

218Unitarian Universalist Association Of Congregations (Amicus curiae)
Represented by Stacey Marie Kaplan
Coughlin Stoia et al., LLP
655 W Broadway #1900
San Diego, CA

219Unitarian Universalist Association Of Congregations (Amicus curiae)
Represented by Samantha Alane Smith
Coughlin Stoia et al. LLP
655 W Broaday #1900
San Diego, CA

220Unitarian Universalist Legislative Ministry, California (Amicus curiae)
Represented by Alexandra Senya Bernay
Coughlin Stoia et al LLP
655 W Broadway #1900
San Diego, CA

221Unitarian Universalist Legislative Ministry, California (Amicus curiae)
Represented by Jon B. Eisenberg
Eisenberg and Hancock, LLP
1970 Broadway, Suite 1200
Oakland, CA

222Unitarian Universalist Legislative Ministry, California (Amicus curiae)
Represented by Eric Alan Isaacson
Coughlin Stoia et al. LLP
655 West Broadway, Suite 1900
San Diego, CA

223Unitarian Universalist Legislative Ministry, California (Amicus curiae)
Represented by Stacey Marie Kaplan
Coughlin Stoia et al., LLP
655 W Broadway #1900
San Diego, CA

224Unitarian Universalist Legislative Ministry, California (Amicus curiae)
Represented by Samantha Alane Smith
Coughlin Stoia et al. LLP
655 W Broaday #1900
San Diego, CA

225Archbishop Mark Steven Shirilau (Amicus curiae)
The Ecumenical Catholic Church
8539 Barnwood Lane
Riverside, CA 92508

226Reilly, Margie (Amicus curiae)
Represented by James Joseph Jr. Lynch
Attorney at Law
4144 Winding Way, Ste. 106
Sacramento, CA

227California National Organization For Women (Amicus curiae)
Represented by Rebecca Jo Edelson
Steptoe & Johnson LLP
2121 Avenue of the Stars, suite 2800
Los Angeles, CA

228California National Organization For Women (Amicus curiae)
Represented by Robbin L. Itkin
Steptoe & Johnson LLP
2121 Avenue of the Stars, Suite 2800
Los Angeles, CA

229California National Organization For Women (Amicus curiae)
Represented by Colleen M O'Brien
Steptoe & Johnson LLP
633 West 5th Street, Suite700
Los Angeles, CA

230California National Organization For Women (Amicus curiae)
Represented by Katherine Charleen Parker
Steptoe & Johnson, LLP
2121 Avenue of the Stars, Suite 2800
Los Angeles, CA

231California National Organization For Women (Amicus curiae)
Represented by Matthew Allender Williams
Steptoe & Johnson LLP
633 W 5th Street, Suite 700
Los Angeles, CA

232National Organization For Women (Amicus curiae)
Represented by Rebecca Jo Edelson
Steptoe & Johnson
2121 Avenue of the Stars, Suite 2800
Los Angeles, CA

233National Organization For Women (Amicus curiae)
Represented by Robbin L. Itkin
Steptoe & Johnson LLP
2121 Avenue of the Stars, Suite 2800
Los Angeles, CA

234National Organization For Women (Amicus curiae)
Represented by Colleen M O'Brien
Steptoe & Johnson, LLP
633 West 5th Street, Suite 700
Los Angeles, CA

235National Organization For Women (Amicus curiae)
Represented by Katherine Charleen Parker
Steptoe & Johnson, LLP
2121 Avenue of the Stars, Suite 2800
Los Angeles, CA

236National Organization For Women (Amicus curiae)
Represented by Matthew Allender Williams
Steptoe & Johnson LLP
633 W 5th St Ste 700
Los Angeles, CA

237Feminist Majority Foundation (Amicus curiae)
Represented by Rebecca Jo Edelson
Steptoe & Johnson LLP
2121 Avenue of the Stars, suite 2800
Los Angeles, CA

238Feminist Majority Foundation (Amicus curiae)
Represented by Robbin L. Itkin
Steptoe & Johnson LLP
2121 Avenue of the Stars, Suite 2800
Los Angeles, CA

239Feminist Majority Foundation (Amicus curiae)
Represented by Colleen M O'Brien
Steptoe & Johnson, LLP
633 West 5th Street, Suite 700
Los Angeles, CA

240Feminist Majority Foundation (Amicus curiae)
Represented by Katherine Charleen Parker
Steptoe & Johnson LLP
2121 Ave. of the Stars, Suite 2800
Los Angeles, CA

241Feminist Majority Foundation (Amicus curiae)
Represented by Matthew Allender Williams
Steptoe & Johnson LLP
633 W 5th St Ste 700
Los Angeles, CA

242Asian Pacific American Legal Center (Amicus curiae)
Represented by Raymond C. Marshall
Bingham McCutchen, LLP
Three Embarcadero Center
San Francisco, CA

243Asian Pacific American Legal Center (Amicus curiae)
Represented by Cynthia Valenzuela Dixon
Mexican American Legal Defense and Education Fund
634 South Spring Street
Los Angeles, CA

244Asian Pacific American Legal Center (Amicus curiae)
Represented by Eva Jefferson Paterson
Equal Justice Society
220 Sansome Street, 14th Floor
San Francisco, CA

245Asian Pacific American Legal Center (Amicus curiae)
Represented by Nancy Anne Ramirez
Mexican American Legal Defense & Education Fund
634 South Spring Street
Los Angeles, CA

246Asian Pacific American Legal Center (Amicus curiae)
Represented by Julie Ann Su
Asian Pacific American Legal Center
1145 Wilshire Boulevard, 2nd Floor
Los Angeles, CA

247Asian Pacific American Legal Center (Amicus curiae)
Represented by Holly Aiyisha Thomas
NAACP Legal Defense and Educational Fund, Inc.
99 Hudson Street, 16th floor
New York, NY

248Asian Pacific American Legal Center (Amicus curiae)
Represented by Kimberly Dione Thomas
Equal Justice Society
220 Sansome Street, 14th Floor
San Francisco, CA

249Asian Pacific American Legal Center (Amicus curiae)
Represented by Karin Hwang Wang
Asian Pac Amer Legal Ctr
1145 Wilshire Blvd.,2nd Floor
Los Angeles, CA

250Asian Pacific American Legal Center (Amicus curiae)
Represented by Tobias Barrington Wolff
University of Pennsylvania Law School
3400 Chestnut Street
Philadelphia, PA

251Suspect Class Californians (Amicus curiae)
Represented by Robert Stanley Lott
Attorney at Law
706 Colorado Avenue
Palo Alto, CA

252Professors Of Law (Amicus curiae)
Represented by Stephen Kent Ehat
Attorney at Law
167 N 1150 E
Lindon, UT

253Catholic Answers (Amicus curiae)
Represented by Charles Salvatore Limandri
Attorney at Law
P. O. Box 9120
Rancho Santa Fe, CA

254City Of Berkeley (Amicus curiae)
Represented by John Stephen Lewis
City of West Hollywood - RSD
8300 Santa Monica Boulevard
West Hollywood, CA

255City Of Berkeley (Amicus curiae)
Represented by Michael Jenkins
City of West Hollywood Legal Services Division
8300 Santa Monica Blvd.
West Hollywood, CA

256Civil Rights Forum (Amicus curiae)
Represented by Meghan A Corman
404 San Anselmo Avenue
404 San Anselmo Avenue
San Anselmo, CA

257Civil Rights Forum (Amicus curiae)
Represented by Lawrence Anthony Organ
Law Ofc Philip E Kay
404 San Anselmo Avenue
San Anselmo, CA

258National Organization For Marriage California (Amicus curiae)
Represented by Joshua Kirk Baker
Institute for Marriage and Public Policy
P.O. Box 1231
Manassas, VA

259National Organization For Marriage California (Amicus curiae)
Represented by William C Duncan
Attorney at Law
1868 North 800 East
Lehi, UT

260Eagle Forum Education & Legal Defense Fund (Amicus curiae)
Represented by Lawrence John Joseph
7600 Colshire Drive, Suite 132
7600 Colshire Drive, Suite 132
McLean, VA

261Steven Mattos, Amor Santiago, Harry Martin, And Paul J. Dori (Amicus curiae)
Represented by Dennis Wah Chiu
Prodigylaw
Civic Center Plaza
675 N. First Street, Suite 790A
San Jose, CA

262Billy Defrank Lgbt Community Center (Amicus curiae)
Represented by Eve M. Coddon
Paul Hastings et al LLP
515 S Flower Street, 25th Floor
Los Angeles, CA

263Billy Defrank Lgbt Community Center (Amicus curiae)
Represented by Kimberley Ann Donohue
Paul Hastings Janofsky & Walker
515 South Flower Street, 25th floor
Los Angeles, CA

264Billy Defrank Lgbt Community Center (Amicus curiae)
Represented by James William Gilliam
Paul Hastings Janofsky Walker
515 S Flower St 19FL
Los Angeles, CA

265Billy Defrank Lgbt Community Center (Amicus curiae)
Represented by Jeffrey Saul Haber
Paul, Hastings, Janofsky & Walker, LLP
515 South Flower Street, 25th Floor
Los Angeles, CA

266Billy Defrank Lgbt Community Center (Amicus curiae)
Represented by Stephen B. Kinnaird
Paul, Hastings, Janofsky & Walker, LLP
875 Fifteenth Street, N.W.
Washington, DC

267Billy Defrank Lgbt Community Center (Amicus curiae)
Represented by Eleanor Kellie Mercado
Paul, Hastings, Janofsky & Walker LLP
515 South Flower Street, 25th floor
Los Angeles, CA

268Billy Defrank Lgbt Community Center (Amicus curiae)
Represented by Sean David Unger
Paul, Hastings, Janofsky & Walker LLP
515 South FLower Street, 25th Floor
Los Angeles, CA

269League Of Women Voters Of California (Amicus curiae)
Represented by Kevin M. Fong
Pillsbury Winthrop Shaw Pittman, LLP
P.O. Box 7880
San Francisco, CA

270League Of Women Voters Of California (Amicus curiae)
Represented by Alice Kwong Ma Hayashi
Pillsbury Winthrop Shaw Pittman, LLP
P.O. Box 7880
San Francisco, CA

271John E. Domine, Et Al. (Amicus curiae)
Represented by Stephan C. Volker
Law Offices of Stephan C. Volker
436 Fourteenth Street, Suite #1300
Oakland, CA

272John E. Domine, Et Al. (Amicus curiae)
Represented by Joshua A. H. Harris
Law Offices of Stephan C. Volker
436 Fourteenth Street, Suite #1300
Oakland, CA

273Constitutional & Civil Rights Law Professors (Amicus curiae)
Represented by Lawrence Reiner Katzin
Morrison & Foerster LLP
425 Market St
San Francisco, CA

274Constitutional & Civil Rights Law Professors (Amicus curiae)
Represented by Samuel James Boone-Lutz
Morrison & Foerster
425 Market St
San Francisco, CA

275Constitutional & Civil Rights Law Professors (Amicus curiae)
Represented by Dorothy Leona Fernandez
Morrison & Foerster LLP
425 Market St
San Francisco, CA

276Constitutional & Civil Rights Law Professors (Amicus curiae)
Represented by Bethany Christa Lobo
Morrison & Foerster LLP
425 Market Street
San Francisco, CA

277Constitutional & Civil Rights Law Professors (Amicus curiae)
Represented by Scott Michael Reiber
Morrison & Foerster LLP
425 Market St
San Francisco, CA

278Constitutional & Civil Rights Law Professors (Amicus curiae)
Represented by Donna Miae Ryu
Hastings College of Law
100 McAllister Street, Suite 300
San Francisco, CA

279Human Rights Watch (Amicus curiae)
Represented by Philip Alan Leider
Perkins Coie LLP
4 Embarcadero Ctr, Ste. 2400
San Francisco, CA

280Human Rights Watch (Amicus curiae)
Represented by Mamta Ahluwalia
Perkins Coie LLP
Four Embarcadero Center, Ste. 2400
San Francisco, CA

281Human Rights Watch (Amicus curiae)
Represented by Geraldine Mary Daly Alexis
Perkins Coie LLP
Four Embarcadero Ctr, Ste. 2400
San Francisco, CA

282Human Rights Watch (Amicus curiae)
Represented by Joren Surya Bass
Perkins Coie LLP
4 Embarcadero Ctr Ste 2400
San Francisco, CA

283Human Rights Watch (Amicus curiae)
Represented by David Paul Chiappetta
Perkins Coie LLP
4 Embarcadero Ctr, Ste. 2400
San Francisco, CA

284Human Rights Watch (Amicus curiae)
Represented by Kirk Andrew Dublin
Perkins Coie LLP
4 Embarcadero Ctr Ste. 2400
San Francisco, CA

285Human Rights Watch (Amicus curiae)
Represented by Farschad Farzan
Perkins Coie LLP
Four Embarcadero Ctr, Ste. 2400
San Francisco, CA

286Human Rights Watch (Amicus curiae)
Represented by Gigi Chau Hoang
Perkins Coie LLP
Four Embarcadero Center, Ste. 2400
San Francisco, CA

287Human Rights Watch (Amicus curiae)
Represented by Liling Poh
Perkins Coie LLP
101 Jefferson Drive
Menlo Park, CA

288Human Rights Watch (Amicus curiae)
Represented by John Stevens Rossiter
Perkins Coie LLP
4 Embarcadero Ctr #2400
San Francisco, CA

289Human Rights Watch (Amicus curiae)
Represented by Troy Philip Sauro
Perkins Coie LLP
Four Embarcadero Center, Ste. 2400
San Francisco, CA

290Human Rights Watch (Amicus curiae)
Represented by Kaycie Lynn Wall
Perkins Coie LLP
101 Jefferson Drive
Menlo Park, CA

291Human Rights Watch (Amicus curiae)
Represented by Jason Anthony Yurasek
Perkins Coie LLP
4 Embarcadero Ctr 24FL
San Francisco, CA

292Manheim, Karl M. (Amicus curiae)
Represented by Susan M. Popik
Chapman Popik & White
650 California Street, 19th Floor
San Francisco, CA

293Manheim, Karl M. (Amicus curiae)
Represented by Gordon Cox Atkinson
Cooley Godward LLP
101 California Street, 5th floor
San Francisco, CA

294Manheim, Karl M. (Amicus curiae)
Represented by Merri Anne Baldwin
Chapmand, Popik & White LLP
650 California Street, 19th Floor
San Francisco, CA

295Manheim, Karl M. (Amicus curiae)
Represented by Craig Collier Daniel
Cooley Godward LLP
101 California Street, 5th floor
San Francisco, CA

296Manheim, Karl M. (Amicus curiae)
Represented by Erin Lindsey Dominguez
Cooley Godward Kronish LLP
101 California Street, 5FL
San Francisco, CA

297Manheim, Karl M. (Amicus curiae)
Represented by Edward P. Howard
717 K Street, Suite 509
717 K Street, Suite 509
Sacramento, CA

298Manheim, Karl M. (Amicus curiae)
Represented by Raquel Alejandra Lacayo-Valle
Chapman, Popik & White, LLP
650 California Street, 19th floor
San Francisco, CA

299Manheim, Karl M. (Amicus curiae)
Represented by Kyle Christophe Wong
Cooley Godward Kronish LLP
101 California Street, 5th floor
San Francisco, CA

300Family Research Counsil (Amicus curiae)
Represented by Benjamin W. Bull
Alliance Defense Fund
15100 N. 90th Street
Scottsdale, AZ

301Family Research Counsil (Amicus curiae)
Represented by Timothy Donald Chandler
Alliance Defense Fund
101 Parkshore Drive, Suite 100
Folsom, CA

302Family Research Counsil (Amicus curiae)
Represented by James A. Campbell
15100 North 90th Street
15100 North 90th Street
Scottsdale, AZ

303Family Research Counsil (Amicus curiae)
Represented by Brian W. Raum
15100 North 90th Street
15100 North 90th Street
Scottsdale, AZ

304Faith In America, Inc (Amicus curiae)
Represented by Cassandra Small Franklin
Dickstein Shapiro LLP
2049 Century Park Eat, Suite 700
Los Angeles, CA

305Human Rights Watch California Committee North (Amicus curiae)
Represented by Philip Alan Leider
Perkins Coie LLP
4 Embarcadero Ctr, Ste. 2400
San Francisco, CA

306Human Rights Watch California Committee North (Amicus curiae)
Represented by Mamta Ahluwalia
Perkins Coie LLP
Four Embarcadero Center, Ste. 2400
San Francisco, CA

307Human Rights Watch California Committee North (Amicus curiae)
Represented by Geraldine Mary Daly Alexis
Perkins Coie LLP
Four Embarcadero Ctr, Ste. 2400
San Francisco, CA

308Human Rights Watch California Committee North (Amicus curiae)
Represented by Joren Surya Bass
Perkins Coie LLP
4 Embarcadero Ctr Ste 2400
San Francisco, CA

309Human Rights Watch California Committee North (Amicus curiae)
Represented by David Paul Chiappetta
Perkins Coie LLP
4 Embarcadero Ctr, Ste. 2400
San Francisco, CA

310Human Rights Watch California Committee North (Amicus curiae)
Represented by Kirk Andrew Dublin
Perkins Coie LLP
4 Embarcadero Ctr Ste. 2400
San Francisco, CA

311Human Rights Watch California Committee North (Amicus curiae)
Represented by Farschad Farzan
Perkins Coie LLP
Four Embarcadero Ctr, Ste. 2400
San Francisco, CA

312Human Rights Watch California Committee North (Amicus curiae)
Represented by Gigi Chau Hoang
Perkins Coie LLP
Four Embarcadero Center, Ste. 2400
San Francisco, CA

313Human Rights Watch California Committee North (Amicus curiae)
Represented by Liling Poh
Perkins Coie LLP
101 Jefferson Drive
Menlo Park, CA

314Human Rights Watch California Committee North (Amicus curiae)
Represented by John Stevens Rossiter
Perkins Coie LLP
4 Embarcadero Ctr #2400
San Francisco, CA

315Human Rights Watch California Committee North (Amicus curiae)
Represented by Troy Philip Sauro
Perkins Coie LLP
Four Embarcadero Center, Ste. 2400
San Francisco, CA

316Human Rights Watch California Committee North (Amicus curiae)
Represented by Kaycie Lynn Wall
Perkins Coie LLP
101 Jefferson Drive
Menlo Park, CA

317Human Rights Watch California Committee North (Amicus curiae)
Represented by Jason Anthony Yurasek
Perkins Coie LLP
4 Embarcadero Ctr 24FL
San Francisco, CA

318Human Rights Watch California Committee South (Amicus curiae)
Represented by Philip Alan Leider
Perkins Coie LLP
4 Embarcadero Ctr, Ste. 2400
San Francisco, CA

319Human Rights Watch California Committee South (Amicus curiae)
Represented by Mamta Ahluwalia
Perkins Coie LLP
Four Embarcadero Center, Ste. 2400
San Francisco, CA

320Human Rights Watch California Committee South (Amicus curiae)
Represented by Geraldine Mary Daly Alexis
Perkins Coie LLP
Four Embarcadero Ctr, Ste. 2400
San Francisco, CA

321Human Rights Watch California Committee South (Amicus curiae)
Represented by Joren Surya Bass
Perkins Coie LLP
4 Embarcadero Ctr Ste 2400
San Francisco, CA

322Human Rights Watch California Committee South (Amicus curiae)
Represented by David Paul Chiappetta
Perkins Coie LLP
4 Embarcadero Ctr, Ste. 2400
San Francisco, CA

323Human Rights Watch California Committee South (Amicus curiae)
Represented by Kirk Andrew Dublin
Perkins Coie LLP
4 Embarcadero Ctr Ste. 2400
San Francisco, CA

324Human Rights Watch California Committee South (Amicus curiae)
Represented by Farschad Farzan
Perkins Coie LLP
Four Embarcadero Ctr, Ste. 2400
San Francisco, CA

325Human Rights Watch California Committee South (Amicus curiae)
Represented by Gigi Chau Hoang
Perkins Coie LLP
Four Embarcadero Center, Ste. 2400
San Francisco, CA

326Human Rights Watch California Committee South (Amicus curiae)
Represented by Liling Poh
Perkins Coie LLP
101 Jefferson Drive
Menlo Park, CA

327Human Rights Watch California Committee South (Amicus curiae)
Represented by John Stevens Rossiter
Perkins Coie LLP
4 Embarcadero Ctr #2400
San Francisco, CA

328Human Rights Watch California Committee South (Amicus curiae)
Represented by Troy Philip Sauro
Perkins Coie LLP
Four Embarcadero Center, Ste. 2400
San Francisco, CA

329Human Rights Watch California Committee South (Amicus curiae)
Represented by Kaycie Lynn Wall
Perkins Coie LLP
101 Jefferson Drive
Menlo Park, CA

330Human Rights Watch California Committee South (Amicus curiae)
Represented by Jason Anthony Yurasek
Perkins Coie LLP
4 Embarcadero Ctr 24FL
San Francisco, CA

331Love Honor Cherish (Amicus curiae)
Represented by Harry A. Zinn
Bate, Peterson, Deacon, Zinn & Young LLP
888 S. Figueroa Street, 15th Floor
Los Angeles, CA

332Love Honor Cherish (Amicus curiae)
Represented by Lester F. Aponte
Bate, Peterson, Deacon, Zinn & Young LLP
888 S. Figueroa Street, 15th Floor
Los Angeles, CA

333Mattos, Steven (Amicus curiae)
Represented by Dennis Wah Chiu
Prodigylaw
Civic Center Plaza
675 N. First Street, Suite 790A
San Jose, CA

334Santiago, Amor (Amicus curiae)
Represented by Dennis Wah Chiu
Prodigylaw
Civic Center Plaza
675 N. First Street, Ste 790A
San Jose, CA

335Martin, Harry (Amicus curiae)
Represented by Dennis Wah Chiu
Prodigylaw
Civic Center Plaza
675 N. First Street, Suite 790A
San Jose, CA

336Dorian, Paul J. (Amicus curiae)
Represented by Dennis Wah Chiu
Prodigylaw
675 N. First Street, Suite 790A
San Jose, CA

337Family Coalition & Colage (Amicus curiae)
Represented by Jason De Bretteville
1870 Embarcadero Road
1870 Embarcadero Road
Palo Alto, CA

338Current & Former California Legislators (Amicus curiae)
Represented by Ethan Douglas Dettmer
Gibson, Dunn & Crutcher, LLP
555 Mission Street, Suite 3000
San Francisco, CA

339Current & Former California Legislators (Amicus curiae)
Represented by Frederick Brown
Gibson Dunn & Crutcher LLP
555 Mission Street, Suite 3000
San Francisco, CA

340Current & Former California Legislators (Amicus curiae)
Represented by Douglas Martin Champion
Gibson Dunn & Crutcher LLP
333 S Grand Ave
Los Angeles, CA

341Current & Former California Legislators (Amicus curiae)
Represented by Lauren Allyn Eber
Gibson Dunn & Crutcher LLP
333 S Grand Ave
Los Angeles, CA

342Current & Former California Legislators (Amicus curiae)
Represented by Rebecca Justice Lazarus
Attorney at Law
555 Mission Street, Suite 3000
San Francisco, CA

343Current & Former California Legislators (Amicus curiae)
Represented by Kaiponanea T. Matsumura
Attorney at Law
555 Mission Street, Suite 3000
San Francisco, CA

344Current & Former California Legislators (Amicus curiae)
Represented by Enrique Antonio Monagas
555 Mission Street, Suite 3000
555 Mission Street, Suite 3000
San Francisco, CA

345Current & Former California Legislators (Amicus curiae)
Represented by Lindsay Rae Pennington
Gibson Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, CA

346Current & Former California Legislators (Amicus curiae)
Represented by Sarah Elizabeth Piepmeier
Attorney at Law
555 Mission Street, Suite 3000
San Francisco, CA

347Current & Former California Legislators (Amicus curiae)
Represented by Heather Lynn Richardson
Gibson Dunn & Crutcher LLP
333 S Grand Ave 47FL
Los Angeles, CA

348J. Rae Lovko And Jason E. Hasley (Amicus curiae)
Represented by Jennifer Rae Lovko
Paul Hanley & Harley LLP
1608 4th St #300
Berkeley, CA

349J. Rae Lovko And Jason E. Hasley (Amicus curiae)
Represented by Jason Elkins Hasley
Paul, Hanley & Harley
1608 Fourth Street, Suite 300
Berkeley, CA

350San Francisco Chamber Of Commerce Et Al (Amicus curiae)
Represented by Vincent H. Chieffo
Greenberg Traurig LLP
2450 Colorado Blvd #400E
Santa Monica, CA

351San Francisco Chamber Of Commerce Et Al (Amicus curiae)
Represented by Jason Howard Farber
Resch Polster & Berger
9200 Sunset Blvd., 9th Floor
Los Angeles, CA

352San Francisco Chamber Of Commerce Et Al (Amicus curiae)
Represented by Dean Hansell
333 South Grand Avenue, Suite 2600
333 South Grand Avenue, Suite 2600
Los Angeles, CA

353San Francisco Chamber Of Commerce Et Al (Amicus curiae)
Represented by Todd Laurence Padnos
333 South Grand Avenue, Suite 2600
333 South Grand Avenue, Suite 2600
Los Angeles, CA

354San Francisco Chamber Of Commerce Et Al (Amicus curiae)
Represented by Philippe Phaneuf
Greenberg Traurig LLP
2450 Colorado Ave #400E
Sant Monica, CA

355San Francisco Chamber Of Commerce Et Al (Amicus curiae)
Represented by Dennis Jay Rasor
Lee Goddard LLP
2450 Colorado Avenue, Suite 400E
Santa Monica, CA

356Pacific Yearly Meeting Of The Religious Society Of Friends, (Amicus curiae)
Represented by Jonathan Solish
Bryan Cave LLP
120 Broadway, Suite 300
Santa Monica, CA

357Pacific Yearly Meeting Of The Religious Society Of Friends, (Amicus curiae)
Represented by Curtis Michael Dombek
Bryan Cave LLP
120 Broadway #300
Santa Monica, CA

358Pacific Yearly Meeting Of The Religious Society Of Friends, (Amicus curiae)
Represented by Marwa M Hassoun
Bryan Cave LLP
120 Broadway Ste 300
Santa Monica, CA

359Pacific Yearly Meeting Of The Religious Society Of Friends, (Amicus curiae)
Represented by Julie Erin Patterson
Bryan Cave LLP
120 Broadway, #300
Santa Monica, CA

360Pacific Yearly Meeting Of The Religious Society Of Friends, (Amicus curiae)
Represented by James Craig Pettis
Bryan Cave LLP
120 Broadway, #300
Santa Monica, CA

361Pacific Yearly Meeting Of The Religious Society Of Friends, (Amicus curiae)
Represented by Meghan Canty Sherrill
Bryan Cave LLP
120 Broadway, #300
Santa Monica, CA

362Pacific Yearly Meeting Of The Religious Society Of Friends, (Amicus curiae)
Represented by Vanessa Anne Sunshine
Bryan Cave LLP
120 Broadway, #300
Santa Monica, CA

363Pacific Yearly Meeting Of The Religious Society Of Friends, (Amicus curiae)
Represented by Michael Benjamin Zara
Bryan Cave LLP
120 Broadway #300
Santa Monica, CA

364Individual Chapman University Oraganizations (Amicus curiae)
Represented by Casey Reed Johnson
Aitken Aitken & Cohn
3 MacArthur Place, #800
Santa Ana, CA

365Individual Chapman University Oraganizations (Amicus curiae)
Represented by Ashleigh Elizabeth Aitken
3 MacArthur Place, #800
3 MacArthur Place, #800
Santa Ana, CA

366Individual Chapman University Oraganizations (Amicus curiae)
Represented by Deborah Ellen Arbabi
Crowell & Moring, LLP
3 Park Plaza, 20th Floor
Irvine, CA

367Individual Chapman University Oraganizations (Amicus curiae)
Represented by Jenny Elizabeth Carey
1 University Drive
1 University Drive
Orange, CA

368Individual Chapman University Oraganizations (Amicus curiae)
Represented by M. Katherine Baird Darmer
Chapman University School of Law
1 University Dr
Orange, CA

369Individual Chapman University Oraganizations (Amicus curiae)
Represented by Roman Ernest Darmer
4 Park Plaza, Suite 1700
4 Park Plaza, Suite 1700
Irvine, CA

370Individual Chapman University Oraganizations (Amicus curiae)
Represented by Kurt Eggert
Chapman Univ School of Law
1 University Dr
Orange, CA

371Individual Chapman University Oraganizations (Amicus curiae)
Represented by Richard Kevin Faulkner
1 University Drive
1 University Drive
Orange, CA

372Individual Chapman University Oraganizations (Amicus curiae)
Represented by John Alexander Hall
1 University Drive
1 University Drive
Orange, CA

373Individual Chapman University Oraganizations (Amicus curiae)
Represented by Jayne Taylor Kacer
1 University Drive
1 University Drive
Orange, CA

374Individual Chapman University Oraganizations (Amicus curiae)
Represented by Steven Gary Krone
1 University Drive
1 University Drive
Orange, CA

375Individual Chapman University Oraganizations (Amicus curiae)
Represented by Francine Joy Lipman
1 University Drive
1 University Drive
Orange, CA

376Individual Chapman University Oraganizations (Amicus curiae)
Represented by Elizabeth Lillian Macdowell
1 University Drive
1 University Drive
Orange, CA

377Individual Chapman University Oraganizations (Amicus curiae)
Represented by Henry Stanbery Noyes
1 University Drive
1 University Drive
Orange, CA

378Individual Chapman University Oraganizations (Amicus curiae)
Represented by Michael Anthony Penn
Aitken Aitken & Cohn
3 MacArthur Place, #800
Santa Ana, CA

379Individual Chapman University Oraganizations (Amicus curiae)
Represented by Steven Paul Rice
Crowell & Moring LLP
3 Park Plz 20FL
Irvine, CA

380National Legal Foundation (Amicus curiae)
Represented by Eric Israel Gutierrez
Attorney at Law
1608 Clevenger Drive
Modesto, CA

381California Teachers Association (Amicus curiae)
Represented by Alice Margaret O'Brien
Bredhoff & Kaiser
1705 Murchison Drive
Burlingame, CA

382California Teachers Association (Amicus curiae)
Represented by Eve Hedy Cervantez
Lieff Cabraser et al LLP
177 Post Street, Suite 300
San Francisco, CA

383California Teachers Association (Amicus curiae)
Represented by James Michael Finberg
177 Post Street, Suite 300
177 Post Street, Suite 300
San Francisco, CA

384Los Angeles, Family Equality Council, Et Al (Amicus curiae)
Represented by David Keringer Ismay
Attorney at Law
235 Montgomery Street, 17th Floor
San Francisco, CA

385Los Angeles, Family Equality Council, Et Al (Amicus curiae)
Represented by Grace Kyungsun Won
Farella Braun & Martel LLP
235 Montgomery St 17th Floor
San Francisco, CA

386Linford, James T. (Amicus curiae)
Represented by James T. Linford
Attorney at Law
P O Box 210598
San Francisco, CA

387Professors Of Family Law (Amicus curiae)
Represented by Courtney Grant Joslin
National Center for Lesbian Rights
400 Mrak Hall Drive
Davis, CA

388Marriage Equality Usa (Amicus curiae)
Represented by Shay Aaron Gilmore
Carroll Burdick & McDonough LLP
44 Montgomery St., Ste. 400
San Francisco, CA

389Marriage Equality Usa (Amicus curiae)
Represented by Jo Ann Hoenninger
HoenningerLaw
2358 Market Street
San Francisco, CA

390Reverend Dr. Frank M. Alton (Amicus curiae)
Represented by Timothy R. Cahn
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

391Reverend Dr. Frank M. Alton (Amicus curiae)
Represented by Eugene Crew
Townsend & Townsend & Crew
2 Embarcadero Ctr 8FL
San Francisco, CA

392Reverend Dr. Frank M. Alton (Amicus curiae)
Represented by Holly Gaudreau
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

393Reverend Dr. Frank M. Alton (Amicus curiae)
Represented by James D. Kiryakoza
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

394Reverend Dr. Frank M. Alton (Amicus curiae)
Represented by Nancy Lynn Tompkins
Townsend Townsend& Crew LLP
2 Embarcadero Ctr 8Fl
San Francisco, CA

395Reverend Dr. Frank M. Alton (Amicus curiae)
Represented by David Jeanchung Tsai
Townsend & Townsend & Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

396Immanuel Presbyterian Church (Amicus curiae)
Represented by Timothy R. Cahn
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

397Immanuel Presbyterian Church (Amicus curiae)
Represented by Eugene Crew
Townsend & Townsend & Crew
2 Embarcadero Ctr 8FL
San Francisco, CA

398Immanuel Presbyterian Church (Amicus curiae)
Represented by Holly Gaudreau
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

399Immanuel Presbyterian Church (Amicus curiae)
Represented by James D. Kiryakoza
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

400Immanuel Presbyterian Church (Amicus curiae)
Represented by Nancy Lynn Tompkins
Townsend Townsend& Crew LLP
2 Embarcadero Ctr 8Fl
San Francisco, CA

401Immanuel Presbyterian Church (Amicus curiae)
Represented by David Jeanchung Tsai
Townsend & Townsend & Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

402Netivot Shalom Synagogue (Amicus curiae)
Represented by Timothy R. Cahn
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

403Netivot Shalom Synagogue (Amicus curiae)
Represented by Eugene Crew
Townsend & Townsend & Crew
2 Embarcadero Ctr 8FL
San Francisco, CA

404Netivot Shalom Synagogue (Amicus curiae)
Represented by Holly Gaudreau
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

405Netivot Shalom Synagogue (Amicus curiae)
Represented by James D. Kiryakoza
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

406Netivot Shalom Synagogue (Amicus curiae)
Represented by Nancy Lynn Tompkins
Townsend Townsend& Crew LLP
2 Embarcadero Ctr 8Fl
San Francisco, CA

407Netivot Shalom Synagogue (Amicus curiae)
Represented by David Jeanchung Tsai
Townsend & Townsend & Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

408Reverend Dr. Jane Adams Spahr (Amicus curiae)
Represented by Timothy R. Cahn
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

409Reverend Dr. Jane Adams Spahr (Amicus curiae)
Represented by Eugene Crew
Townsend & Townsend & Crew
2 Embarcadero Ctr 8FL
San Francisco, CA

410Reverend Dr. Jane Adams Spahr (Amicus curiae)
Represented by Holly Gaudreau
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

411Reverend Dr. Jane Adams Spahr (Amicus curiae)
Represented by James D. Kiryakoza
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

412Reverend Dr. Jane Adams Spahr (Amicus curiae)
Represented by Nancy Lynn Tompkins
Townsend Townsend& Crew LLP
2 Embarcadero Ctr 8Fl
San Francisco, CA

413Reverend Dr. Jane Adams Spahr (Amicus curiae)
Represented by David Jeanchung Tsai
Townsend & Townsend & Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

414Reverend Dr. John T. Norris (Amicus curiae)
Represented by Timothy R. Cahn
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

415Reverend Dr. John T. Norris (Amicus curiae)
Represented by Eugene Crew
Townsend & Townsend & Crew
2 Embarcadero Ctr 8FL
San Francisco, CA

416Reverend Dr. John T. Norris (Amicus curiae)
Represented by Holly Gaudreau
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

417Reverend Dr. John T. Norris (Amicus curiae)
Represented by James D. Kiryakoza
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

418Reverend Dr. John T. Norris (Amicus curiae)
Represented by Nancy Lynn Tompkins
Townsend Townsend& Crew LLP
2 Embarcadero Ctr 8Fl
San Francisco, CA

419Reverend Dr. John T. Norris (Amicus curiae)
Represented by David Jeanchung Tsai
Townsend & Townsend & Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

420Reverend Dr. Glenda Hope (Amicus curiae)
Represented by Timothy R. Cahn
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

421Reverend Dr. Glenda Hope (Amicus curiae)
Represented by Eugene Crew
Townsend & Townsend & Crew
2 Embarcadero Ctr 8FL
San Francisco, CA

422Reverend Dr. Glenda Hope (Amicus curiae)
Represented by Holly Gaudreau
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

423Reverend Dr. Glenda Hope (Amicus curiae)
Represented by James D. Kiryakoza
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

424Reverend Dr. Glenda Hope (Amicus curiae)
Represented by Nancy Lynn Tompkins
Townsend Townsend& Crew LLP
2 Embarcadero Ctr 8Fl
San Francisco, CA

425Reverend Dr. Glenda Hope (Amicus curiae)
Represented by David Jeanchung Tsai
Townsend & Townsend & Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

426Rabbi David J. Cooper (Amicus curiae)
Represented by Timothy R. Cahn
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

427Rabbi David J. Cooper (Amicus curiae)
Represented by Eugene Crew
Townsend & Townsend & Crew
2 Embarcadero Ctr 8FL
San Francisco, CA

428Rabbi David J. Cooper (Amicus curiae)
Represented by Holly Gaudreau
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

429Rabbi David J. Cooper (Amicus curiae)
Represented by James D. Kiryakoza
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

430Rabbi David J. Cooper (Amicus curiae)
Represented by Nancy Lynn Tompkins
Townsend Townsend& Crew LLP
2 Embarcadero Ctr 8Fl
San Francisco, CA

431Rabbi David J. Cooper (Amicus curiae)
Represented by David Jeanchung Tsai
Townsend & Townsend & Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

432Kehilla Community Synagogue (Amicus curiae)
Represented by Timothy R. Cahn
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

433Kehilla Community Synagogue (Amicus curiae)
Represented by Eugene Crew
Townsend & Townsend & Crew
2 Embarcadero Ctr 8FL
San Francisco, CA

434Kehilla Community Synagogue (Amicus curiae)
Represented by Holly Gaudreau
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

435Kehilla Community Synagogue (Amicus curiae)
Represented by James D. Kiryakoza
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

436Kehilla Community Synagogue (Amicus curiae)
Represented by Nancy Lynn Tompkins
Townsend Townsend& Crew LLP
2 Embarcadero Ctr 8Fl
San Francisco, CA

437Kehilla Community Synagogue (Amicus curiae)
Represented by David Jeanchung Tsai
Townsend & Townsend & Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

438Reverend Laura Rose (Amicus curiae)
Represented by Timothy R. Cahn
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

439Reverend Laura Rose (Amicus curiae)
Represented by Eugene Crew
Townsend & Townsend & Crew
2 Embarcadero Ctr 8FL
San Francisco, CA

440Reverend Laura Rose (Amicus curiae)
Represented by Holly Gaudreau
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

441Reverend Laura Rose (Amicus curiae)
Represented by James D. Kiryakoza
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

442Reverend Laura Rose (Amicus curiae)
Represented by Nancy Lynn Tompkins
Townsend Townsend& Crew LLP
2 Embarcadero Ctr 8Fl
San Francisco, CA

443Reverend Laura Rose (Amicus curiae)
Represented by David Jeanchung Tsai
Townsend & Townsend & Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

444Reverend Janet Mccune Edwards (Amicus curiae)
Represented by Timothy R. Cahn
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

445Reverend Janet Mccune Edwards (Amicus curiae)
Represented by Eugene Crew
Townsend & Townsend & Crew
2 Embarcadero Ctr 8FL
San Francisco, CA

446Reverend Janet Mccune Edwards (Amicus curiae)
Represented by Holly Gaudreau
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

447Reverend Janet Mccune Edwards (Amicus curiae)
Represented by James D. Kiryakoza
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

448Reverend Janet Mccune Edwards (Amicus curiae)
Represented by Nancy Lynn Tompkins
Townsend Townsend& Crew LLP
2 Embarcadero Ctr 8Fl
San Francisco, CA

449Reverend Janet Mccune Edwards (Amicus curiae)
Represented by David Jeanchung Tsai
Townsend & Townsend & Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

450Reverend Kathryn M. Schreiber (Amicus curiae)
Represented by Timothy R. Cahn
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

451Reverend Kathryn M. Schreiber (Amicus curiae)
Represented by Eugene Crew
Townsend & Townsend & Crew
2 Embarcadero Ctr 8FL
San Francisco, CA

452Reverend Kathryn M. Schreiber (Amicus curiae)
Represented by Holly Gaudreau
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

453Reverend Kathryn M. Schreiber (Amicus curiae)
Represented by James D. Kiryakoza
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

454Reverend Kathryn M. Schreiber (Amicus curiae)
Represented by Nancy Lynn Tompkins
Townsend Townsend& Crew LLP
2 Embarcadero Ctr 8Fl
San Francisco, CA

455Reverend Kathryn M. Schreiber (Amicus curiae)
Represented by David Jeanchung Tsai
Townsend & Townsend & Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

456Reverend Susan A. Meeter (Amicus curiae)
Represented by Timothy R. Cahn
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

457Reverend Susan A. Meeter (Amicus curiae)
Represented by Eugene Crew
Townsend & Townsend & Crew
2 Embarcadero Ctr 8FL
San Francisco, CA

458Reverend Susan A. Meeter (Amicus curiae)
Represented by Holly Gaudreau
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

459Reverend Susan A. Meeter (Amicus curiae)
Represented by James D. Kiryakoza
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

460Reverend Susan A. Meeter (Amicus curiae)
Represented by Nancy Lynn Tompkins
Townsend Townsend& Crew LLP
2 Embarcadero Ctr 8Fl
San Francisco, CA

461Reverend Susan A. Meeter (Amicus curiae)
Represented by David Jeanchung Tsai
Townsend & Townsend & Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

462Mira Vista United Church Of Christ (Amicus curiae)
Represented by Timothy R. Cahn
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

463Mira Vista United Church Of Christ (Amicus curiae)
Represented by Eugene Crew
Townsend & Townsend & Crew
2 Embarcadero Ctr 8FL
San Francisco, CA

464Mira Vista United Church Of Christ (Amicus curiae)
Represented by Holly Gaudreau
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

465Mira Vista United Church Of Christ (Amicus curiae)
Represented by James D. Kiryakoza
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

466Mira Vista United Church Of Christ (Amicus curiae)
Represented by Nancy Lynn Tompkins
Townsend Townsend& Crew LLP
2 Embarcadero Ctr 8Fl
San Francisco, CA

467Mira Vista United Church Of Christ (Amicus curiae)
Represented by David Jeanchung Tsai
Townsend & Townsend & Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

468Mckay, Nancy (Amicus curiae)
Represented by Timothy R. Cahn
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

469Mckay, Nancy (Amicus curiae)
Represented by Eugene Crew
Townsend & Townsend & Crew
2 Embarcadero Ctr 8FL
San Francisco, CA

470Mckay, Nancy (Amicus curiae)
Represented by Holly Gaudreau
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

471Mckay, Nancy (Amicus curiae)
Represented by James D. Kiryakoza
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

472Mckay, Nancy (Amicus curiae)
Represented by Nancy Lynn Tompkins
Townsend Townsend& Crew LLP
2 Embarcadero Ctr 8Fl
San Francisco, CA

473Mckay, Nancy (Amicus curiae)
Represented by David Jeanchung Tsai
Townsend & Townsend & Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

474Rabbi Menachem Creditor (Amicus curiae)
Represented by Timothy R. Cahn
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

475Rabbi Menachem Creditor (Amicus curiae)
Represented by Eugene Crew
Townsend & Townsend & Crew
2 Embarcadero Ctr 8FL
San Francisco, CA

476Rabbi Menachem Creditor (Amicus curiae)
Represented by Holly Gaudreau
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

477Rabbi Menachem Creditor (Amicus curiae)
Represented by James D. Kiryakoza
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

478Rabbi Menachem Creditor (Amicus curiae)
Represented by Nancy Lynn Tompkins
Townsend Townsend& Crew LLP
2 Embarcadero Ctr 8Fl
San Francisco, CA

479Rabbi Menachem Creditor (Amicus curiae)
Represented by David Jeanchung Tsai
Townsend & Townsend & Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

480Reverend Dr. Paul Tellstrom (Amicus curiae)
Represented by Timothy R. Cahn
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

481Reverend Dr. Paul Tellstrom (Amicus curiae)
Represented by Eugene Crew
Townsend & Townsend & Crew
2 Embarcadero Ctr 8FL
San Francisco, CA

482Reverend Dr. Paul Tellstrom (Amicus curiae)
Represented by Holly Gaudreau
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

483Reverend Dr. Paul Tellstrom (Amicus curiae)
Represented by James D. Kiryakoza
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

484Reverend Dr. Paul Tellstrom (Amicus curiae)
Represented by Nancy Lynn Tompkins
Townsend Townsend& Crew LLP
2 Embarcadero Ctr 8Fl
San Francisco, CA

485Reverend Dr. Paul Tellstrom (Amicus curiae)
Represented by David Jeanchung Tsai
Townsend & Townsend & Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

486Irvine United Congregational Church (Amicus curiae)
Represented by Timothy R. Cahn
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

487Irvine United Congregational Church (Amicus curiae)
Represented by Eugene Crew
Townsend & Townsend & Crew
2 Embarcadero Ctr 8FL
San Francisco, CA

488Irvine United Congregational Church (Amicus curiae)
Represented by Holly Gaudreau
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

489Irvine United Congregational Church (Amicus curiae)
Represented by James D. Kiryakoza
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

490Irvine United Congregational Church (Amicus curiae)
Represented by Nancy Lynn Tompkins
Townsend Townsend& Crew LLP
2 Embarcadero Ctr 8Fl
San Francisco, CA

491Irvine United Congregational Church (Amicus curiae)
Represented by David Jeanchung Tsai
Townsend & Townsend & Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

492Covenant Network Of Presbyterians (Amicus curiae)
Represented by Timothy R. Cahn
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

493Covenant Network Of Presbyterians (Amicus curiae)
Represented by Eugene Crew
Townsend & Townsend & Crew
2 Embarcadero Ctr 8FL
San Francisco, CA

494Covenant Network Of Presbyterians (Amicus curiae)
Represented by Holly Gaudreau
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

495Covenant Network Of Presbyterians (Amicus curiae)
Represented by James D. Kiryakoza
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

496Covenant Network Of Presbyterians (Amicus curiae)
Represented by Nancy Lynn Tompkins
Townsend Townsend& Crew LLP
2 Embarcadero Ctr 8Fl
San Francisco, CA

497Covenant Network Of Presbyterians (Amicus curiae)
Represented by David Jeanchung Tsai
Townsend & Townsend & Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

498More Light Presbyterians (Amicus curiae)
Represented by Timothy R. Cahn
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

499More Light Presbyterians (Amicus curiae)
Represented by Eugene Crew
Townsend & Townsend & Crew
2 Embarcadero Ctr 8FL
San Francisco, CA

500More Light Presbyterians (Amicus curiae)
Represented by Holly Gaudreau
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

501More Light Presbyterians (Amicus curiae)
Represented by James D. Kiryakoza
Townsend and Townsend and Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

502More Light Presbyterians (Amicus curiae)
Represented by Nancy Lynn Tompkins
Townsend Townsend& Crew LLP
2 Embarcadero Ctr 8Fl
San Francisco, CA

503More Light Presbyterians (Amicus curiae)
Represented by David Jeanchung Tsai
Townsend & Townsend & Crew LLP
Two Embarcadero Center, 8th Floor
San Francisco, CA

504City Of Beverly Hills (Amicus curiae)
Represented by Laurence Samuel Wiener
Richards Watson & Gershon
355 S. Grand Avenue, 40th Floor
Los Angeles, CA

505City Of Beverly Hills (Amicus curiae)
Represented by Susan Elizabeth Rusnak
Richards, Watson & Gershon
355 S. Grand Avenue, 40th Floor
Los Angeles, CA

506City Of Sacramento (Amicus curiae)
Represented by Matthew David Ruyak
Office of the City Attorney of Sacramento
915 "I" Street, Fourth Floor
Sacramento, CA

507Eskridge, N. William (Amicus curiae)
Represented by Laura Joy Edelstein
Brune & Richard LLP
235 Montgomery Street, Suite 1130
San Francisco, CA

508Eskridge, N. William (Amicus curiae)
Represented by Randall Thomas Kim
Brune & Richard LLP
235 Montgomery Street, Suite 1130
San Francisco, CA

509Eskridge, N. William (Amicus curiae)
Represented by Thomas J. Ringer
Brune & Richard LLP
235 Montgomery Street, Suite 1130
San Francisco, CA

510Cain, Bruce E. (Amicus curiae)
Represented by Laura Joy Edelstein
Brune & Richard LLP
235 Montgomery Street, Suite 1130
San Francisco, CA

511Cain, Bruce E. (Amicus curiae)
Represented by Randall Thomas Kim
Brune & Richard LLP
235 Montgomery Street, Suite 1130
San Francisco, CA

512Cain, Bruce E. (Amicus curiae)
Represented by Thomas J. Ringer
Brune & Richard LLP
235 Montgomery Street, Suite 1130
San Francisco, CA

513Association Of Certified Family Law Specialists (Amicus curiae)
Represented by Garrett C. Dailey
Attorney at Law
2915 McClure Street
Oakland, CA

514Association Of Certified Family Law Specialists (Amicus curiae)
Represented by Shane Ray Ford
Attorney at Law
500 12th Street, Suite 250
Oakland, CA

515Association Of Certified Family Law Specialists (Amicus curiae)
Represented by Katherine Elinor Stoner
Stoner Welsh & Schmidt
413 Forest Avenue
Pacific Grove, CA

516Association Of Certified Family Law Specialists (Amicus curiae)
Represented by Leslie Ellen Shear
Attorney at Law
16000 Ventura Blvd., Suite 500
Encino, CA

517American Academy Of Matrimonial Lawyers (Amicus curiae)
Represented by Leslie Ellen Shear
Attorney at Law
16000 Ventura Blvd., Suite 500
Encino, CA

518American Academy Of Matrimonial Lawyers (Amicus curiae)
Represented by Garrett C. Dailey
Attorney at Law
2915 McClure Street
Oakland, CA

519American Academy Of Matrimonial Lawyers (Amicus curiae)
Represented by Shane Ray Ford
Attorney at Law
500 12th Street, Suite 250
Oakland, CA

520American Academy Of Matrimonial Lawyers (Amicus curiae)
Represented by Katherine Elinor Stoner
Stoner Welsh & Schmidt
413 Forest Avenue
Pacific Grove, CA

521California State Conference Of The Naacp (Amicus curiae)
Represented by Raymond C. Marshall
Bingham McCutchen, LLP
Three Embarcadero Center
San Francisco, CA

522Equal Justice Society (Amicus curiae)
Represented by Raymond C. Marshall
Bingham McCutchen, LLP
Three Embarcadero Center
San Francisco, CA

523Mexican American Legal Defense & Educational Fund (Amicus curiae)
Represented by Raymond C. Marshall
Bingham McCutchen, LLP
Three Embarcadero Center
San Francisco, CA

524Naacp Legal Defense & Educational Fund, Inc. (Amicus curiae)
Represented by Raymond C. Marshall
Bingham McCutchen, LLP
Three Embarcadero Center
San Francisco, CA

525Baker, C. Edwin (Amicus curiae)
Represented by Walter Ryerson Rieman
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, NY

526Our Family Coalition And Colage (Amicus curiae)
Represented by Jason De Bretteville
Sullivan & Cromwell LLP
1870 Embarcadero Road
Palo Alto, CA

527Our Family Coalition And Colage (Amicus curiae)
Represented by David A. Castleman
Sullivan & Cromwell, LLP
125 Broad Street
New York, NY

528Our Family Coalition And Colage (Amicus curiae)
Represented by Stacey R. Friedman
125 Broad Street
125 Broad Street
New York, NY

529Our Family Coalition And Colage (Amicus curiae)
Represented by Maura E. Miller
Sulllivan & Cromwell, LLP
125 Broad Street
New York, NY

530Our Family Coalition And Colage (Amicus curiae)
Represented by Robert Andrew Sacks
Sullivan & Cromwell LLP
1888 Century Park East
Los Angeles, CA

531Anti-Defamation League (Amicus curiae)
Represented by Clifford Scott Davidson
Proskauer Rose, LLP
2049 Century Park East, 32nd Floor
Los Angeles, CA

532Anti-Defamation League (Amicus curiae)
Represented by Lois D. Thompson
Proskauer Rose LLP
2049 Century Park East, 32nd Floor
Los Angeles, CA

533Anti-Defamation League (Amicus curiae)
Represented by Albert Charles Valencia
Proskauer Rose LLP
2049 Century Park East, 32nd Floor
Los Angeles, CA

534Meiers, Steven (Amicus curiae)
161 South Woodburn Drive
Los Angeles, CA 90049

535Rodrigues, Samuel (Amicus curiae)
147 W. Election Road
Draper, UT 84020

536Fidelis Center For Law & Policy (Amicus curiae)
Represented by Angela C. Thompson
Attorney at Law
3800 Watt Avenue, Suite 101
Sacramento, CA

537Fidelis Center For Law & Policy (Amicus curiae)
Represented by Patrick T. T. Gillen
Attorney at Law
3475 Plymouth Road
Ann Arbor, MI

538California Catholic Conference (Amicus curiae)
Represented by James F. Sweeney
Sweeney & Greene, LLP
9381 E. Stockton Boulevard, Suite 218
Elk Grove, CA

539California Catholic Conference (Amicus curiae)
Represented by Luke Goodrich
The Becket Fund for Religious Liberty
1350 Connecticut Ave. NW, Suite 605
Washington, WA

540California Catholic Conference (Amicus curiae)
Represented by Eric Rassbach
The Becket Fund for Religious Liberty
1350 Connecticut Ave. NW, Sutie 605
Washington, WA

541California Catholic Conference (Amicus curiae)
Represented by Lori Windham
The Becket Fund for Religious Liberty
1350 Connecticut Ave. NW, Suite 605
Washington, WA

542Southern Christian Leadership Conference Of Greater L.A. (Amicus curiae)
Represented by Steven D Ashford
Attorney at Law
477 W. Sepulveda Street
San Pedro, CA

543Chapman University President James Doti (Amicus curiae)
Represented by Wylie A. Aitken
Attorney at Law
3 MacArthur Place, Suite 800
Santa Ana, CA

544Chapman University Trustee (Amicus curiae)
Represented by Wylie A. Aitken
Attorney at Law
3 MacArthur Place, Suite 800
Santa Ana, CA


Opinion Authors
OpinionChief Justice Ronald M. George
ConcurJustice Joyce L. Kennard, Justice Kathryn M. Werdegar
DissentJustice Carlos R. Moreno

Disposition
May 26 2009Opinion filed

Dockets
Nov 5 2008Petition for mandate/prohibition & stay filed (civil)
Karen L. Strauss et al., Petitioners by Shannon P. Minter, counsel
Nov 5 2008Request for judicial notice received (pre-grant)
Karen L. Strauss, et al., Petitioners by Shannon P. Minter, counsel
Nov 5 2008Exhibit(s) lodged
Nov 5 2008Filed:
Petitioners' amendment to petition for writ of mandate. Karen L. Strauss et al., Petitioners by Shannon P. Minter, counsel
Nov 10 2008Motion for leave to intervene filed
Motion by Campaign for California Families to intervene as respondents. by Mary McAlister, counsel
Nov 10 2008Received:
letter from the Bar Association of San Francisco, Legal Aid Society Employment Law Center et al. in support of petition. by James M. Finberg, counsel
Nov 10 2008Received:
letter from Forty-Four members of the California State Legislature in support of petitioners. by Ethan Dettmer, counsel
Nov 10 2008Received:
letter from Anti-Defamation League, Asian Law Caucus, Bet Tzedek Legal Services, Japanese American Citizens League & Public Counsel in support of petition ~Attorney Clifford S. Davidson
Nov 12 2008Received:
letter from the Beverly Hills Bar Association et al., in support of the petition. by Irving H. Greines and Cynthia E. Tobisman, counsel
Nov 12 2008Opposition requested
from the Attorney General, Sacramento. The court has directed that I request preliminary oppositions to the above referenced matters. The oppositions are to be served upon counsel for petitioners, by facsimile and filed in this court on or before November 17, 2008, by 12:00 p.m. The oppositions may be filed by facsimile at (415) 865-7183 with original and 13 hard copies to follow by mail.
Nov 13 2008Received:
letter from Pacific Justice Institute requesting denial of the request for stay. by Kevin T. Snider, counsel
Nov 14 2008Received:
Notice of Errata by Kevin T. Snider to letter brief of Pacific Justice Institute. On pages 1 and 3 an erroneous date of November 6, 2009, is used. Instead the date should be November 6, 2008.
Nov 17 2008Received:
Letter from Los Angeles County Bar Association in support of petitioners. by Irving H.Greines and Cynthia E. Tobisman, counsel
Nov 17 2008Received:
letter from The Center for Constitutional jurisprudence in opposition to the petition filed by petitioners. by David L. Llewellyn, counsel
Nov 17 2008Received:
letter from Steve Meiers in opposition to the amended petition filed by petitioners.
Nov 17 2008Motion for leave to intervene filed
Motion by Proposition 8 Official Proponents, et al., to intervene as Real Parties in Interest. by Andrew P. Pugno, counsel
Nov 17 2008Request for judicial notice received (pre-grant)
Proposition 8 Official Proponents et al., by Andrew P. Pugno, counsel
Nov 17 2008Received:
Preliminary Opposition from Proposition 8 Official Proponents et al., by Andrew P. Pugno, counsel
Nov 17 2008Preliminary opposition to writ petition filed
(Preliminary Response) by Mark. B. Horton et al., Respondents by Mark R. Beckington, counsel
Nov 17 2008Received:
letter from the Kingdom of Heaven in oppostion to the petition filed by petitioners.
Nov 17 2008Received:
letter from American Center for Law & Justice requesting denial of the petition and request for stay. Vincent P. McCarthy, counsel
Nov 17 2008Received:
letter from Alameda County Bar Association et al., in support of petition. by Kelly M. Dermody, counsel
Nov 17 2008Received:
letter from The Southern Poverty Law Center in support of petitioners. by Scott Wm. Davenport, counsel
Nov 17 2008Received:
letter from The Constitutional Law Center of the Monterey College of Law in support of petitioner's petition. by Joel Franklin, Michael W. Stamp and Amy M. Larson, counsel
Nov 17 2008Received:
letter from Prof. Donna M. Chu at the University of California, Hastings College of the Law in support of petitioners
Nov 18 2008Received:
letter from The Pop Luck Club in support of petition. David M. Snow, counsel.
Nov 18 2008Received:
letter from Ecumenical Catholic Church in support of petitioners. by Rev. Mark S. Shirilau.
Nov 18 2008Received:
amended letter from Prof. Donna M. Ryu, U.C. Hastings College of the Law to add Laurence H. Tribe in support of petitioners.
Nov 18 2008Received:
Letter from Andrew P. Pugno in opposition to Motion to Intervene filed by Campaign for California Families.
Nov 18 2008Opposition filed
By Karen L. Strauss, et al., petitioners to Motion to Intervene filed by Campaign for California Families. by Christopher F. Stoll, counsel
Nov 19 2008Received:
Proposed Intervenors Campaign for California Families preliminary opposition to petition. / CRC 8.25(b) by Mary E. McAlister, counsel
Nov 19 2008Order to show cause issued
The motion for judicial notice filed in S168047 by petitioners on November 5, 2008, is GRANTED. The requests for a stay of Proposition 8 filed by petitioners in S168047 and in S168066 are DENIED. Respondent Secretary of State Bowen's request to be dismissed as a respondent in S168066 is GRANTED. (Kevelin v. Jordan (1964) 62 Cal.2d 82.) The motions to intervene in S168047, S168066, and S168078, filed on November 17, 2008, by Proposition 8 Official Proponents et al. are GRANTED. The motions to intervene in S168047, S168066, and S168078, filed on November 10, 2008, by Campaign for California Families, are DENIED. The State of California, the Attorney General, the State Registrar of Vital Statistics, and the Deputy Director of Health Information and Strategic Planning of the California Department of Public Health are ORDERED TO SHOW CAUSE before this court, when the above entitled matters are called on calendar, why the relief sought by petitioners should not be granted. The issues to be briefed and argued in these matters are as follows: (1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (See Cal. Const., art. XVIII, sections 1-4.) (2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution? (3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8? The return is to be filed by respondents, and a brief may be filed by intervenors, in the San Francisco Office of the Supreme Court on or before Friday, December 19, 2008. A reply may be filed by petitioners in the San Francisco Office of the Supreme Court on or before Monday, January 5, 2009. Any application to file an amicus curiae brief, accompanied by the proposed brief, may be filed in the San Francisco Office of the Supreme Court on or before Thursday, January 15, 2009. Any reply to an amicus curiae brief may be filed in the San Francisco Office of the Supreme Court on or before Wednesday, January 21, 2009. Moreno, J. joins this order except that he would grant the requests to stay the operation of Proposition 8 pending this court's resolution of these matters. Kennard, J. would deny these petitions without prejudice to the filing in this court of an appropriate action to determine Proposition 8's effect, if any, on the marriages of same-sex couples performed before Proposition 8's adoption. Votes: George, C.J., Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Nov 20 2008Order filed
In order to avoid the unnecessary filing of multiple identical copies of amicus curiae applications and briefs, the court will consider any amicus curiae filing in S168047, S168066, or S168078, in connection with its consideration and resolution of each of these matters.
Nov 24 2008Order filed
In light of the order granting intervention filed on November 19, 2008, and in order to conform to the format prescribed by the California Style Manual (Cal. Style Manual (4th ed. 2000) section 6:35), the above entitled matter is retitled as follows: KAREN L. STRAUSS et al., Petitioners, v. MARK B. HORTON, as State Registrar of Vital Statistics, etc., et al., Respondents; DENNIS HOLLINGSWORTH et al., Interveners.
Dec 12 2008Note: Mail returned and re-sent
copy of order sent to Allison S. Elgart
Dec 12 2008Note: Mail returned and re-sent
various copies of orders sent to Jenny Lynn Darlington-Person
Dec 12 2008Note: Mail returned and re-sent
various copies of orders sent to Jason Joseph Molnar
Dec 12 2008Note: Mail returned and re-sent
various copies of orders sent to Darin Lee Wessel
Dec 12 2008Note: Mail returned and re-sent
various copies of orders sent to Scott William Davenport
Dec 12 2008Note: Mail returned and re-sent
various copies of orders sent to Amy Marie Larson
Dec 19 2008Request for judicial notice filed (granted case)
Mark D. Horton, as State Registrar of Vital Statistics etc. et al., Respondents. Kimberly Graham, Deputy Attorney General
Dec 19 2008Application filed
to file a oversized brief MARK B. HORTON, as State Registrar of Vital Statistics etc. et al., Respondents. Christopher E. Krueger, Senior Asst. Attorney General
Dec 19 2008Written return filed
and Answer to Amended Petition for Writ of Mandate Mark B. Horton as State Registrar of Vital Statistics, etc., et al., respondents. Kenneth C. Mennemeier, counsel
Dec 19 2008Filed:
Substitution of Counsel by respondents Mark B. Horton and Linette Scott substitue Kenneth C. Mennemeier and the law firm of Mennemeier, Glassman & Stroud LLP in place of California Attorney General Edmund G. Brown, Jr. as their counsel in this matter.
Dec 19 2008Association of attorneys filed for:
Kenneth Starr as co-counsel for interveners Dennis Hollingsworth et al.
Dec 19 2008Opposition filed
Intervener's Opposition Brief. Dennis Hollingsworth et al., Interveners. Andrew P. Pugno and Kenneth W. Starr, counsel
Dec 19 2008Request for judicial notice filed (granted case)
Dennis Hollingsworth et al., Interveners. Andrew P. Pugno and Kenneth W. Starr, counsel
Dec 19 2008Received:
Respondents', Mark D. Horton, oversized return to petition by Christopher Krueger, counsel
Dec 19 2008Written return filed
Edmund G. Brown, Respondent by Christopher Krueger, counsel filed with permission
Dec 19 2008Filed:
Respondent's, Edmund G. Brown, answer to amended petition for extraordinary relief. by Christopher Krueger, counsel
Dec 22 2008Order filed
In light of the new issue set forth at pages 75-90 in the Answer Brief filed by the Attorney General on December 19, 2008, in each of these cases, the court grants interveners permission to file a brief in the San Francisco Office of the Supreme Court, on or before January 5, 2009, responding to that issue.
Dec 23 2008Received:
Supplemental Proof of Service from Edmund G. Brown, Jr., Attorney General, Respondents.
Dec 23 2008Received:
Amended Proof of Service from Edmund G. Brown, Jr., Attorney General, Respondents.
Dec 23 2008Received:
letter from the John C. Eastman, Dean, at Chapman University School of Law.
Dec 23 2008Request for extension of time filed
Christopher F. Stoll counsel for petitioners Karen L. Strauss et al., requesting to January 12, 2009, to file their reply brief which is presently due on January 5. (to court for permission)
Dec 23 2008Extension of time denied
The application, filed by petitioners on December 23, 2008, requesting an extension of time to file the reply brief, is DENIED.
Dec 23 2008Request for extension of time filed
Andrew P. Pugno counsel for interveners Dennis Hollingsworth et al. requesting to Wed., January 21, 2009, to file Interveners' brief in response to the new issue set forth at pages 75-90 in the Answer Brief filed by the Attorney General (to court for permission)
Dec 24 2008Order filed
The application, filed by interveners on December 23, 2008, requesting an extension of time to file the brief due on or before January 5, 2009, is DENIED. The court grants interveners permission to supplement the legal argument and authorities set forth in their January 5, 2009 brief with additional argument and authorities that may be included in their reply to amicus curiae briefs that is due on or before January 21, 2009.
Dec 31 2008Received:
Interveners' Errata to Opposition Brief filed 12/19/2008.
Jan 2 2009Received:
Supplemental Declaration of Proof of Service from the Office of the Attorney General
Jan 5 2009Filed:
Interveners' Response to Pages 75-90 of the Attorney General's Answer Brief. Dennis Hollingsworth, et al. Interveners Kenneth W. Starr and Andrew P. Pugno, counsel
Jan 5 2009Application filed
to file overlength reply Karen L. Strauss et al., Petitioners Christopher F. Stoll, counsel (to court for permission to file)
Jan 5 2009Received:
Reply to Written Return Karen L. Strauss et al., Petitioners Christopher F. Stoll, counsel
Jan 5 2009Reply to return filed
Karen L. Strauss et al., Petitioners Christopher F. Stoll, counsel
Jan 6 2009Application filed
by counsel for petitioners for permission to file a corrected reply brief. by Mark R. Conrad, counsel
Jan 6 2009Received:
Corrected Reply in support of petition of Karen L. Strauss et al., Petitioners. Spoke to Christopher Stoll counsel for petitioners advising him that an application for permission to file a Corrected Reply is required with the brief - forthcoming.
Jan 7 2009Order filed
The application filed on January 6, 2009 by counsel for petitioners requesting permission to file a corrected reply brief is hereby granted.
Jan 7 2009Filed:
Petitioner's corrected reply brief by Mark. R. Conrad, counsel
Jan 8 2009Received application to file Amicus Curiae Brief
of Margie Reilly in support of Interveners by James Joseph Lynch, JR., counsel
Jan 12 2009Application to appear as counsel pro hac vice (granted case)
by David A. Castleman for approval to appear pro hac vice as amicus curiae (to court for permission)
Jan 12 2009Application to appear as counsel pro hac vice (granted case)
by Maura E. Miller for approval to appear pro hac vice as amicus curiae (to court for permission)
Jan 12 2009Application to appear as counsel pro hac vice (granted case)
by Stacey R. Friedman for approval to appear pro hac vice as amicus curiae (to court for permission)
Jan 12 2009Received application to file Amicus Curiae Brief
from a California Resident who wishes to stay anonymous (to court for permission to file)
Jan 12 2009Order filed
The application for permission to file an amicus curiae brief anonymously, received on January 12, 2009, is denied.
Jan 13 2009Received application to file Amicus Curiae Brief
The Church of the Messiah submitted by T.M. Reverend Messiah
Jan 13 2009Received application to file Amicus Curiae Brief
of Labor in support of Interveners by William A. Sokol, counsel
Jan 13 2009Order filed
The order filed on January 12, 2009, denying the applicaction to file an anonymous amicus brief is amended to reflect the title above.
Jan 14 2009Application to appear as counsel pro hac vice granted
The application of David A. Castleman of New York, Stacey R. Friedman of New York, and Maura E. Miller of New York for admission pro hac vice to appear as amicus curiae is hereby granted. (See (See Cal. Rules of Court, rule 9.40.)
Jan 14 2009Received application to file Amicus Curiae Brief
of Michael McDermott in support of Interveners in pro per (to court for permission)
Jan 14 2009Received application to file Amicus Curiae Brief
of Concerned with Gender Equality: Equal Rights Advocates, California Women's Law Center, Women Lawyers of Santa Cruz County, Lawyers Club of San Diego, Legal Momentum and National Association of Women Lawyers in support of Petitioners. by Laura W. Brill, counsel
Jan 14 2009Received application to file Amicus Curiae Brief
of Archbishop Mark Steven Shirilau in support of Petitioners. in pro per.
Jan 14 2009Received application to file Amicus Curiae Brief
of Jewish Family Service of Los Angeles in support of Petitioners. by Phalen G. Hurewitz, counsel
Jan 14 2009Received application to file Amicus Curiae Brief
of California National Organization for Women, National Organization for Women, and the Feminist Majority Foundation in support of Petitioners. by Rebecca Edelson, counsel
Jan 14 2009Received application to file Amicus Curiae Brief
California Council of Churches; The Right Reverend Marc Handley Andrus, Episcopal Bishop of California; The Right Reverend J. Jon Bruno, Episcopal Bishop of Los Angeles; The General Synod of the United Church of Christ; Northern California Nevada Conference of the United Church of Christ; Southern California Nevada Conference of the United Church of Christ; Progressive Jewish Alliance; Unitarian Universalist Association of Congregations; and Unitarian Universalist Legislative Ministry, CA in support of Petitioners by Eric Alan Isaacson, counsel
Jan 14 2009Received application to file Amicus Curiae Brief
of Sacramento Lawyers for Equality of Gays and Lesbians in support of Petitioners. by S. Michelle May, counsel
Jan 15 2009Received application to file Amicus Curiae Brief
to join Amici Curiae California Council of Churches et al., - brief filed January 15, 2009 15 Faith Organizations in support of petitioners by Peter E. Perkowski, counsel
Jan 15 2009Application to appear as counsel pro hac vice (granted case)
Patrick Gillen of District of Columbia for amicus Fidelis Center for Law and Policy
Jan 15 2009Received application to file Amicus Curiae Brief
of amicus Fidelis Center for Law and Policy in support of interveners by Angela C. Thompson, counsel
Jan 15 2009Application to appear as counsel pro hac vice (granted case)
of Luke W. Goodrich of District of Columbia, Eric R. Rassbach of District of Columbia, and Lori H. Windham of District of Columbia for amicus The California Catholic Conference et al.
Jan 15 2009Received application to file Amicus Curiae Brief
of The California Catholic Conference, The United States Conference of Catholic Bishops, and The Union of Orthodox Jewish Congregations of America by James F. Sweeney, counsel
Jan 15 2009Received:
Notice of Errata of Amicus Brief submitted by J. Rae Lovko and Jason E. Hasley
Jan 15 2009Received application to file Amicus Curiae Brief
Alameda County Bar Association, Bar Association of San Francisco, Los Angeles County Bar Association, Marin County Bar Association, Santa Clara County Bar Association, et al., in support of petitioners by Elizabeth J. Cabraser, counsel
Jan 15 2009Received application to file Amicus Curiae Brief
Steven Mattos, Amor Santiago, Harry Martin and Paul J. Dorian, in support of petitioners by Dennis W. Chiu, counsel.
Jan 15 2009Received application to file Amicus Curiae Brief
Pacific Yearly Meeting of the Religious Society of Friends, Santa Monica Monthly Meeting of the Religious Society of Friends, Orange Grove Monthly Meeting of the Religious Society of Friends, Claremont Monthly Meeting of the Religious Society of Friends by Jonathan Solish, counsel.
Jan 15 2009Received application to file Amicus Curiae Brief
Love Honor Cherish by Lester F. Aponte, counsel.
Jan 15 2009Received application to file Amicus Curiae Brief
J. Rae Lovko and Jason E. Hasley in support of petitioners by J. Rae Lovko and Jason E. Hasley, counsels
Jan 15 2009Received application to file Amicus Curiae Brief
Eagle Forum Education & Legal Defense Fund in support of interveners by Lawrence J. Joseph, counsel.
Jan 15 2009Received application to file Amicus Curiae Brief
Family Research Council in support of interveners by Timothy Chandler, counsel.
Jan 15 2009Received application to file Amicus Curiae Brief
Steven Meiers in opposition to amended petition for extraordinary relief by Steven Meiers, counsel.
Jan 15 2009Received application to file Amicus Curiae Brief
Professors of Law opposing the petitions regarding issue #3 and the issues on pages 75-90 of the answer brief filed by the Attorney General by Stephen K. Ehat, counsel.
Jan 15 2009Received application to file Amicus Curiae Brief
Catholic Answers in support of interveners by Charles S. LiMandri, counsel.
Jan 15 2009Received application to file Amicus Curiae Brief
National Organization for Marriage California in support of intervenors by William C. Duncan, counsel.
Jan 15 2009Received application to file Amicus Curiae Brief
C. Edwin Baker, Robert A. Burt and Kermit Roosevelt, III, in support of petitioners by Walter Rieman, counsel.
Jan 15 2009Received application to file Amicus Curiae Brief
League of Women Voters of California in support of petitioners by Alice K. M. Hayashi, counsel.
Jan 15 2009Received application to file Amicus Curiae Brief
The City of Berkeley, City of Cloverdale, City of Davis, Town of Fairfax, County of Humboldt, City of Long Beach, City of Palm Springs, County of Sonoma and City of West Hollywood in support petitioners by J. Stephen Lewis, counsel.
Jan 15 2009Received application to file Amicus Curiae Brief
Beverly Hills Bar Association, California Women Lawyers, Women Lawyers Association of Los Angeles and Women Lawyers of Sacramento in support of petitioners by Irving H. Greines, Cynthia E. Tobisman and Jennifer C. Yang, counsels.
Jan 15 2009Received application to file Amicus Curiae Brief
American Center of Law and Justice and Three Members of Congress in support of intervenors by Brian R. Chavez-Ochoa, counsel.
Jan 15 2009Received application to file Amicus Curiae Brief
Current and Former California Legislators in support of petitioners by Ethan Dettmer, counsel.
Jan 15 2009Received application to file Amicus Curiae Brief
Faith in America, Inc., in support of petitioners by Cassandra S. Franklin, counsel.
Jan 15 2009Received application to file Amicus Curiae Brief
Anti-Defamation League et al., in support of petitioners by Clifford S. Davidson, counsel
Jan 15 2009Received application to file Amicus Curiae Brief
The Constitutional Law Center of Monterey College of Law in support of petitioners by Joel Franklin, Michael W. Stamp and Amy M. Larson, counsels.
Jan 15 2009Received application to file Amicus Curiae Brief
Zakary Akin, et al., in support of petitioners by Robert Lott, counsel.
Jan 15 2009Application to appear as counsel pro hac vice (granted case)
by James A. Campbell for approval to appear pro hac vice as amicus curiae (to court for permission)
Jan 15 2009Permission to file amicus curiae brief granted
The application of Margie Reilly for permission to file an amicus curiae brief in support of Interveners is hereby granted.
Jan 15 2009Application to appear as counsel pro hac vice (granted case)
by Brian W. Raum for approval to appear pro hac vice as amicus curiae (to court for permission)
Jan 15 2009Amicus curiae brief filed
Margie Reilly in support of interveners. by counsel, James Joseph Lynch Jr.
Jan 15 2009Permission to file amicus curiae brief granted
The application of The Church of the Messiah for permission to file an amicus curiae brief in support of interveners is hereby granted.
Jan 15 2009Amicus curiae brief filed
The Church of the Messiah in support of interveners. by T.M. Reverend Messiah.
Jan 15 2009Application to appear as counsel pro hac vice (granted case)
by Robert A. Kaplan for approval to appear pro hac vice as amicus curiae (to court for permission).
Jan 15 2009Permission to file amicus curiae brief granted
The application of Labor for permission to file an amicus curiae brief in support of petitioners is hereby granted.
Jan 15 2009Amicus curiae brief filed
Labor in support of petitioners by counsel, William A. Sokol.
Jan 15 2009Application to appear as counsel pro hac vice (granted case)
by Vincent P. McCarthy for approval to appear pro hac vice as amicus curiae (to court for permission).
Jan 15 2009Permission to file amicus curiae brief granted
The application of Michael J. McDermott for permission to file an amicus curiae brief in support of interveners is hereby granted.
Jan 15 2009Amicus curiae brief filed
Michael J. McDermott in pro se., in support of interneners.
Jan 15 2009Permission to file amicus curiae brief granted
The application of Archbishop Mark Steven Shirilau for permission to file an amicus curiae brief in support of petitioners is hereby granted
Jan 15 2009Amicus curiae brief filed
Archbishop Mark Steven Shirilau, in pro se.
Jan 15 2009Permission to file amicus curiae brief granted
The application of Jewish Family Service of Los Angeles for permission to file an amicus curiae brief in support of petitioners is hereby granted.
Jan 15 2009Amicus curiae brief filed
Jewish Family Service of Los Angeles by counsel, Phalen G. Hurewitz.
Jan 15 2009Permission to file amicus curiae brief granted
The application of California National Organization for Women, National Organization for Women and the Feminist Majority Foundation for permission to file an amicus curiae brief in support of petitioners is hereby granted.
Jan 15 2009Amicus curiae brief filed
California National Organization for Women, et al., by counsel, Rebecca Edelson.
Jan 15 2009Request for judicial notice filed (granted case)
Amicus Curiae, National Organization for Women, et al. by counsel, Rebecca Edelson.
Jan 15 2009Application to appear as counsel pro hac vice (granted case)
by Benjamin W. Bull for approval to appear pro hac vice as amicus curiae (to court for permission).
Jan 15 2009Permission to file amicus curiae brief granted
The application of California Council of Churches; The Right Reverend Marc Handley Andrus, Episcopal Bishop of California; The Right Reverend J. Jon Bruno, Episcopal Bishop of Los Angeles; The General Synod of the United Church of Christ; Northern California Nevada Conference of the United Church of Christ; Southern California Nevada Conference of the United Church of Christ; Progressive Jewish Alliance; Unitarian Universalist Association of Congregations; and Unitarian Universalist Legislative Ministry, CA in support of Petitioners for permission to file an amicus curiae brief in support of petitioners is hereby granted.
Jan 15 2009Application to appear as counsel pro hac vice (granted case)
by William C. Duncan for approval to appear pro hac vice as amicus curiae (to court for permission).
Jan 15 2009Amicus curiae brief filed
California Council of Churches, et al., by counsel, Eric Alan Isaacson.
Jan 15 2009Application to appear as counsel pro hac vice (granted case)
by Tobias Barrington Wolff for approval to appear pro hac vice as amicus curiae (to court for permission).
Jan 15 2009Permission to file amicus curiae brief granted
The application of Sacramento Lawyers for Equality of Gays and Lesbians for permission to file an amicus curiae brief in support of petitioners is hereby granted.
Jan 15 2009Received application to file Amicus Curiae Brief
Asian Pacific American Legal Center, California State Conference of NAACP, Equal Justice Society, Mexican American Legal Defense & Education Fund, NAACP Legal Defense & Education Fund in support of petitioners by Raymond C. Marshall, counsel.
Jan 15 2009Amicus curiae brief filed
Sacramento Lawyers for Equality of Gay and Lesbians by counsel, S. Michelle May.
Jan 15 2009Permission to file amicus curiae brief granted
The application of Concerned with Gender Equality: Equal Rights Advocates, California Women's Law Center, Women Lawyers of Santa Cruz County, Legal Momentum, National Association of Women Lawyers and Lawyer's Club of San Diego for permission to file an amicus curiae brief in support of petitioners is hereby granted.
Jan 15 2009Amicus curiae brief filed
Concerned with Gender Equality, et al., by counsel, Laura W. Brill.
Jan 15 2009Received application to file Amicus Curiae Brief
The Civil Rights Forum in support of petitioners. by Lawrence A. Organ, counsel
Jan 15 2009Received application to file Amicus Curiae Brief
Pacific Justice Institute in support of interveners Dennis Hollingsworth, et al., by Kevin T. Snider, counsel
Jan 16 2009Filed:
Joinder Brief to the amici curiae California Council of Churches et al., in support of petitioners. by Peter E. Perkowski (filed w/permission)
Jan 16 2009Received:
Amended Declaration of Dennis W. Chiu counsel for amici curiae Steven Mattos, et al.
Jan 16 2009Received:
Certificate of Service for amicus curaie brief of American Center for Law and Justice and Three Members of United States Congress
Jan 16 2009Received:
Supplemental Proof of Service re Application for Leave to File Amicus Curiae Brief and (Proposed) Amicus Curiae Brief of Anti-Defamation League et al. By Clifford S. Davidson, counsel
Jan 16 2009Received:
Amended Proof of Service on behalf of amici curiae Billy DeFrank LGBT Community Center et al. by Sean D. Unger, counsel
Jan 16 2009Received:
Amended Certificate of Service to the Application for Leave to File Brief and Brief of Amici Curiae Alameda County Bar Association et al. by Allsion S. Elgart, counsel
Jan 16 2009Permission to file amicus curiae brief granted
The application of Benjamin W. Bull of Arizona, Brian W. Raum of New York and James A. Campbell of Ohio for admission pro hac vice to appear on behalf of amicus curiae Family Research Council is hereby granted. (See Cal. Rules of Court, rule 9.40.) The application of Family Research Council for permission to file an amicus curiae brief in support of interveners is hereby granted.
Jan 16 2009Amicus curiae brief filed
Family Research Council in support of interveners Timothy Chandler, counsel
Jan 16 2009Permission to file amicus curiae brief granted
The application of William C. Duncan of Utah for admission pro hac vice to appear on behalf of amicus curiae National Organization for Marriage California is hereby granted. (See Cal. Rules of Court, rule 9.40.) The application of National Organization for Marriage California for permission to file an amicus curiae brief in support of interveners is hereby granted.
Jan 16 2009Amicus curiae brief filed
National Organization for Marriage California in support of interveners William C. Duncan, counsel
Jan 16 2009Permission to file amicus curiae brief granted
The application of League of Women Voters of California for permission to file an amicus curiae brief in support of petitioners is hereby granted.
Jan 16 2009Amicus curiae brief filed
League of Women Voters of California in support of petitioners. Kevin M. Fong, counsel.
Jan 16 2009Permission to file amicus curiae brief granted
The application of Love Honor Cherish for permission to file an amicus curiae brief in support of petitioners is hereby granted.
Jan 16 2009Amicus curiae brief filed
Love Honor Cherish in support of petitioners. Lester F. Aponte, counsel
Jan 16 2009Permission to file amicus curiae brief granted
The application of Pacific Yearly Meeting of the Religious Society of Friends, Santa Monica Monthly Meeting of the Religious Society of Friends, Orange Grove Monthly Meeting of the Religious Society of Friends and Claremont Monthly Meeting of the Religious Society of Friends for permission to file an amicus curiae brief in support of petitioners is hereby granted.
Jan 16 2009Amicus curiae brief filed
Pacific Yearly Meeting of the Religious Society of Friends, Santa Monica Monthly Meeting of the Religious Society of Friends, Orange Grove Monthly Meeting of the Religious Society of Friends and Claremont Monthly Meeting of the Religious Society of Friends in support of petitioners. Jonathan Solish, counsel
Jan 16 2009Permission to file amicus curiae brief granted
The application of Professors of Law for permission to file an amicus curiae brief in support of interveners is hereby granted.
Jan 16 2009Amicus curiae brief filed
Professors of Law in support of interveners. Stephen Kent Ehat, counsel
Jan 16 2009Permission to file amicus curiae brief granted
The application of the City of Berkeley, City of Cloverdale, City of Davis, Town of Fairfax, County of Humboldt, City of Long Beach, City of Palm Springs, County of Sonoma and City of West Hollywood for permission to file an amicus curiae brief in support of petitioners is hereby granted.
Jan 16 2009Amicus curiae brief filed
City of Berkeley, City of Cloverdale, City of Davis, Town of Fairfax, County of Humboldt, City of Long Beach, City of Palm Springs, County of Sonoma and City of West Hollywood in support of petitioners. J. Stephen Lewis, counsel
Jan 16 2009Permission to file amicus curiae brief granted
The application of Eagle Forum Education & Legal Defense Fund for permission to file an amicus curiae brief in support of interveners is hereby granted.
Jan 16 2009Amicus curiae brief filed
Eagle Forum Education & Legal Defense Fund in support of interveners. Lawrence J. Joseph, counsel
Jan 16 2009Permission to file amicus curiae brief granted
The application of Faith in America, Inc. for permission to file an amicus curiae brief in support of petitioners is hereby granted.
Jan 16 2009Amicus curiae brief filed
Faith in America, Inc., in support of petitioners. Cassandra S. Franklin, counsel
Jan 16 2009Permission to file amicus curiae brief granted
The application of Current and Former California Legislators for permission to file an amicus curiae brief in support of petitioners is hereby granted.
Jan 16 2009Amicus curiae brief filed
Current and Former California Legislators in support of petitioners. Ethan Dettmer, counsel
Jan 16 2009Permission to file amicus curiae brief granted
The application of J. Rae Lovko and Jason E. Hasley for permission to file an amicus curiae brief in support of petitioners is hereby granted.
Jan 16 2009Amicus curiae brief filed
J. Rae Lovko and Jason E. Hasley in support of petitioners. in pro per
Jan 16 2009Permission to file amicus curiae brief granted
The application of Beverly Hills Bar Association, California Women Lawyers, Women Lawyers Association of Los Angeles and Women Lawyers of Sacramento for permission to file an amicus curiae brief in support of petitioners is hereby granted.
Jan 16 2009Amicus curiae brief filed
Beverly Hills Bar Association, California Women Lawyers, Women Lawyers Association of Los Angeles and Women Lawyers of Sacramento in support of petitioners. Irving H. Greines, Cynthia E. Tobisman and Jennifer C. Yang, counsel
Jan 16 2009Permission to file amicus curiae brief granted
The application of Anti-Defamation League, Asian Law Caucus, Americans United for Separation of Church and State, Japanese American Citizens League, Southern California Chinese Lawyers Association, Asian Pacific Islander Legal Outreach, Legal Aid Foundation of Los Angeles, Bet Tzedek Legal Services, Public Counsel, Orange County Asian Pacific Islander Community Alliance, National Senior Citizens Law Center, API Equality - LA, API Equality, API Parents and Friends of Lesbians and Gays (Los Angeles Chapter), Chicana Latina Foundation, American Jewish Committee, Barbara Jordan/Bayard Rustin Coalition, Asian Pacific Americans for Progress, BIENESTAR, Asian Law Alliance, National Asian Pacific American Women's Forum, Gay Vietnamese Alliance, South Asian Network, Chinese for Affirmative Action, Gay Asian Pacific Alliance, Gay Asian Pacific Support Network, Korean Resource Center, Asian Communities for Reproductive Justice, And Marriage for All, Korean Community Center of the East Bay, Advocacy Coalition of Tulare County for Women and Girls, Asian & Pacific Islander Wellness Center, Filipinos for Affirmative Action, National Korean American Service & Education Consortium, Asian & Pacific Islander Family Pride, O-Moi, Asian and Pacific Islander American Health Forum, Asian Pacific AIDS Intervention Team, Asian Pacific Policy & Planning Council, and Philippine American Bar Association for permission to file an amicus curiae brief in support of petitioners is hereby granted.
Jan 16 2009Amicus curiae brief filed
Anti-Defamation League et al., in support of petitioners. Clifford S. Davidson, counsel
Jan 16 2009Permission to file amicus curiae brief granted
The application of Alameda County Bar Association, Bar Association of San Francisco, Los Angeles County Bar Association, Marin County Bar Association, Santa Clara County Bar Association, AIDS Legal Referral Panel, Asian American Bar Association of the Greater Bay Area, Asian American Justice Center, Asian Pacific American Bar Association of Los Angeles Association, California Rural Legal Assistance, Inc., Central California Legal Services, Inc., Charles Houston Bar Association, Consumer Attorneys of San Diego, East Bay La Raza Lawyers Association, Fred T. Korematsu Center for Law and Equality, Gay & Lesbian Advocates & Defenders, Impact Fund, Japanese American Bar Association of Greater Los Angeles, Korean American Bar Association of Northern California, Korean American Bar Association of Southern California, Latina Lawyers Bar Association, Law Foundation of Silicon Valley, Lawyer's Club of San Francisco, Lawyers' Committee for Civil Rights of the San Francisco Bay Area, Legal Aid Society - Employment Law Center, Lesbian and Gay Lawyers Association of Los Angeles, Mexican American Bar Association, Minority Bar Coalition, National LGBT Bar Association, National Asian Pacific American Bar Association, National Lawyers Guild San Francisco Bay Area Chapter, Public Justice, Queen's Bench Bar Association of the San Francisco Bay Area, San Francisco Trial Lawyers Association, South Asian Bar Association of Northern California, South Asian Bar Association of San Diego, Tom Homann Law Association and the Transgender Law Center for permission to file an amicus curiae brief in support of petitioners is hereby granted.
Jan 16 2009Amicus curiae brief filed
Alameda County Bar Association in support of petitioners. Elizabeth J. Cabraser, counsel
Jan 16 2009Permission to file amicus curiae brief granted
The application of Tobias Barrington Wolff of Pennsylvania for admission pro hac vice to appear on behalf of amicus curiae Asian Pacific American Legal Center, California Sate Conference of the NAACP, Equal Justice Society, Mexican American Legal Defense and Educational Fund, and NAACP Legal Defense and Educational Fund, Inc., is hereby granted. (See Cal. Rules of Court, rule 9.40.) The application of Asian Pacific American Legal Center, California Sate Conference of the NAACP, Equal Justice Society, Mexican American Legal Defense and Educational Fund, and NAACP Legal Defense and Educational Fund, Inc., for permission to file an amicus curiae brief in support of petitioners is hereby granted.
Jan 16 2009Amicus curiae brief filed
Asian Pacific American Legal Center et al. in support of petitioners. Raymond C. Marshall, counsel
Jan 16 2009Permission to file amicus curiae brief granted
In addition to the amicus curiae briefs previously filed in these matters, the applications for permission to file amicus curiae briefs submitted by the persons and entities listed below are hereby granted. Professors of State Constitutional Law et al. Billy DeFrank LGBT Community Center et al. John Emmanuel Domine et al. James T. Linford San Francisco La Raza Lawyers Association Marriage for Equality USA Human Rights Watch et al. Constitutional and Civil Rights Law Professors Association of Certified Family Law Specialists et al. Professor Karl M. Manheim Reverend Dr. Frank M. Alton et al. Professors of Family Law Center for Constitutional Jurisprudence Advocates for Faith and Freedom et al. National Legal Foundation The Civil Rights Forum Individual Chapman University Organizations et al. Erin Figueroa et al. Campaign for California Families Pacific Justice Institute Log Cabin Republicans California Teachers Association Children's Law Center of Los Angeles et al. William N. Eskridge, Jr. et al. San Francisco Chamber of Commerce et al. Our Family Coalition and COLAGE Kingdom of Heaven Samuel Rodrigues
Jan 16 2009Amicus curiae brief filed
Assoc. of Certified Family Law Specialiss and American Academy of Matrimonal Lawyers, No. Calif. Chapter. Leslie Ellen Shear, counsel
Jan 16 2009Amicus curiae brief filed
Advocates for Faith and Freedom, et al. Robert Tyler, counsel
Jan 16 2009Amicus curiae brief filed
Karl M. Manheim, in support of petitioners Susan Popik, counsel
Jan 16 2009Amicus curiae brief filed
Kingdom of Heaven, in support of respondents by D. Q. Mariette Do-Nguyen, in pro per
Jan 16 2009Amicus curiae brief filed
Our Family Coalition and COLAGE, in support of petitioners by Jason De Bretteville, counsel
Jan 16 2009Amicus curiae brief filed
for William Eskridge, Jr., et al., in support of petitioners, by Laurie Edelstein, Counsel
Jan 16 2009Amicus curiae brief filed
Reverend Dr. Frank M. Alton, et al., in support of petitioners. Timothy Cahn, counsel
Jan 16 2009Amicus curiae brief filed
for the Civil Rights Forum, in support of petitioners, by Lawrence A. Organ, counsel
Jan 16 2009Amicus curiae brief filed
San Francisco Chamber of Commerce, et al. in support of petitioners. Dean Hansell, counsel
Jan 16 2009Amicus curiae brief filed
San Francisco La Raza Lawyers Assoc., in support of petitioners. Troy Yoshino, counsel
Jan 16 2009Amicus curiae brief filed
Professors of State Constitutional Law, et al., in support of petitioners, by Elizabeth Harlan, Counsel
Jan 16 2009Amicus curiae brief filed
Human Rights Watch, et al., in support of petitioners, by Philip A. Leider, Counsel
Jan 16 2009Amicus curiae brief filed
Individual Chapman University Organizations, et al., in support of petitioners. M. Katherine Baird, counsel w/exhibits 1 volume
Jan 16 2009Amicus curiae brief filed
Marriage Equality USA in support of petitioners, by Jo Hoenninger and Shay Aaron Gilmore, Counsel
Jan 16 2009Permission to file amicus curiae brief granted
The application of Steven Mattos, Amor Santiago, Harry Martin and Paul J. Dorian for permission to file an amicus curiae brief in support of petitioners is hereby granted.
Jan 16 2009Amicus curiae brief filed
Steven Mattos, Amor Santiago, Harry Martin and Paul J. Dorian in support of petitioners. Dennis W. Chiu, counsel
Jan 16 2009Amicus curiae brief filed
California Teachers Assoc. in support of petitioners. Barbara Chisholm, counsel.
Jan 16 2009Request for judicial notice filed (granted case)
Our Family Coalition and COLAGE by Jason De Bretteville, counsel.
Jan 16 2009Amicus curiae brief filed
Erin Figueroa, et al., in support of petitioners, by Christopher L. Lebsock, Counsel
Jan 16 2009Request for judicial notice filed (granted case)
Amicus Curiae Steven Mattos, Amor Santiago, Harry Martin and Paul J. Dorian Dennis W. Chiu, counsel
Jan 16 2009Amicus curiae brief filed
for Children's Law Center of Los Angeles, et al., in support of petitioners by Brett R. Wheeler, counsel.
Jan 16 2009Amicus curiae brief filed
Log Cabin Republicans, in support of petitioners by Dan Woods, counsel
Jan 16 2009Amicus curiae brief filed
for John E. Domine, et al., in support of petitioners by Stephan C. Volker, counsel.
Jan 16 2009Permission to file amicus curiae brief granted
The application of Steven Meiers for permission to file an amicus curiae brief in support of respondents is hereby granted.
Jan 16 2009Amicus curiae brief filed
Steven Meiers in support of respondents. in pro per
Jan 16 2009Amicus curiae brief filed
National Legal Foundation, in support of respondents by Eric I. Gutierrez, counsel
Jan 16 2009Amicus curiae brief filed
for the Center for Constitutional Jurisprudence, in support of interveners by David L. Llewellyn, Jr., counsel.
Jan 16 2009Request for judicial notice filed (granted case)
Log Cabin Republicans, amicus curiae, by Dan Woods, Counsel
Jan 16 2009Amicus curiae brief filed
Professors of Family Law, in support of petitioners by Courtney G. Joslin, counsel
Jan 16 2009Amicus curiae brief filed
for Campaign for California Families in support of interveners by Mary E. McAlister, counsel.
Jan 16 2009Permission to file amicus curiae brief granted
The application of Catholic Answers for permission to file an amicus curiae brief in support of interveners is hereby granted.
Jan 16 2009Amicus curiae brief filed
for Constitutional and Civil Rights Law Professors, in support of petitioners by Lawrence R. Katzin, counsel.
Jan 16 2009Amicus curiae brief filed
Catholic Answers in support of interveners. Sarah E. Troupis, counsel
Jan 16 2009Amicus curiae brief filed
for Pacific Justice Institute, in support of interveners by Kevin T. Snider, counsel.
Jan 16 2009Amicus curiae brief filed
Billy DeFrank LGBT Community Center, et al., in support of petitioners by Eve Coddon, counsel
Jan 16 2009Permission to file amicus curiae brief granted
The application of Suspect Class Californians: Zakary Akin, Naomi Canchela, Terrence Fong, Jessica Hirschfelder, Adrienne Loo, Carolyn Lott, Robert Lott, Quang Nguyen, Agata Opalach, Jeff Pilisuk, Shalini Ramachandran, Vidhya Ramachandran, Joseph Robinson, Lee Schneider and Nathan Wilcox for permission to file an amicus curiae brief in support of petitioners is hereby granted.
Jan 16 2009Amicus curiae brief filed
for James T. Linford, in support of petitioners by James T. Linford, counsel.
Jan 16 2009Amicus curiae brief filed
Suspect Class Californians in support of petitioners. Robert Lott, counsel
Jan 16 2009Amicus curiae brief filed
California Council of Churches et al., in support of petitioners by Peter E. Perkowski, counsel
Jan 16 2009Amicus curiae brief filed
by Samuel Rodrigues, in pro per, in support of respondents
Jan 16 2009Permission to file amicus curiae brief granted
The application of Roberta A. Kaplan of New York for admission pro hac vice to appear on behalf of amicus curiae C. Edwin Baker, Robert A. Burt and Kermit Roosevelt III is hereby granted. (See Cal. Rules of Court, rule 9.40.) The application of C. Edwin Baker, Robert A. Burt and Kermit Roosevelt III for permission to file an amicus curiae brief in support of petitioners is hereby granted.
Jan 16 2009Amicus curiae brief filed
C. Edwin Baker, Robert A. Burt and Kermit Roosevelt III in support of petitioners. Walter Rieman, counsel
Jan 16 2009Permission to file amicus curiae brief granted
The application of Constitutional Law Center of the Monterey College of Law for permission to file an amicus curiae brief in support of petitioners is hereby granted.
Jan 16 2009Amicus curiae brief filed
Constitutional Law Center of the Monterey College of Law in support of petitioners. Joel Franklin, Michael W. Stamp and Amy M. Larson, counsel
Jan 16 2009Permission to file amicus curiae brief granted
The application of Vincent P. McCarthy of Connecticut for admission pro hac vice to appear on behalf of amicus curiae American Center for Law and Justice and Three Members of the United States Congress is hereby granted. (See Cal. Rules of Court, rule 9.40.) The application of American Center for Law and Justice and Three Members of the United States Congress for permission to file an amicus curiae brief in support of interveners is hereby granted.
Jan 16 2009Amicus curiae brief filed
American Center for Law and Justice et al. in support of interveners. Brian Chavez-Ochoa, counsel
Jan 20 2009Received:
Certificate of word count of amicus curiae brief by James Linford
Jan 20 2009Received:
Corrected Certificate of Word Count for the Application and Brief filed by amici curiae Individual Chapman University Organizations et al. by Deborah E. Arbabi, counsel
Jan 20 2009Permission to file amicus curiae brief granted
The application of Patrick Gillen of Michigan for admission pro hac vice to appear on behalf of amicus curiae Fidelis Center for Law and Policy is hereby granted. (See Cal. Rules of Court, rule 9.40. The application of Fidelis Center for Law and Policy for permission to file an amicus curiae brief in support of interveners is hereby granted.
Jan 20 2009Amicus curiae brief filed
Fidelis Center for Law and Policy in support of interveners Angelea C. Thompson, counsel
Jan 20 2009Permission to file amicus curiae brief granted
The application of Luke W. Goodrich of District of Columbia, Eric R. Rassbach of District of Columbia, and Lori H. Windham of District of Columbia for admission pro hac vice to appear on behalf of amicus curiae The California Catholic Conference, The United States Conference of Catholic Bishops, and The Union of Orthodox Jewish Congregations of America is hereby granted. (See Cal. Rules of Court, rule 9.40.) The application of The California Catholic Conference, The United States Conference of Catholic Bishops, and The Union of Orthodox Jewish Congregations of America for permission to file an amicus curiae brief in support of interveners is hereby granted.
Jan 20 2009Amicus curiae brief filed
The California Catholic Conference, The United States Conference of Catholic Bishops, and The Union of Orthodox Jewish Congregations of America in support of interveners James F. Sweeney, counsel
Jan 21 2009Response to amicus curiae brief filed
By Interveners, Dennis Hollingsworth et al., and Supplemental Response to pages 75-90 of the Attorney General's Answer Brief. By Andrew Pugno, counsel
Jan 21 2009Request for judicial notice filed (granted case)
by Interveners, Dennis Hollingsworth et al., in support of Interveners' Response to Amicus Curiae Briefs and Supplemental Response to Pages 75-90 of the Attorney's General Answer Brief. by Andrew Pugno, counsel
Jan 21 2009Response to amicus curiae brief filed
by Petitioners, Karen L. Strauss, et al., by Shannon P. Minter, counsel
Jan 21 2009Received:
Petitioners' supplemental service list by Shannon P. Minter, counsel
Jan 21 2009Response to amicus curiae brief filed
by The Attorney General by Christopher Krueger, counsel
Jan 22 2009Received:
Letter from counsel for Interveners dated January 20, 2009, requesting additional Oral Argument time when the matters are placed on calendar. by Kenneth W. Starr, counsel
Jan 26 2009Filed:
Request of Consumer Attorneys of California to Join in support of Amici Curiae Brief filed by Concerned with Gender Equality et al. (to court for permission)
Jan 26 2009Note: Mail returned and re-sent
Copy of order dated January 16, 2009, sent to Dennis W. Chiu
Jan 27 2009Application filed
to add additional Labor Organizations as amici curiae to a brief already filed in support of petitioners and on behalf of California Federation of Labor, AFL-CIO and 52 other organizations. by William Sokol, counsel (to court for permission)
Jan 29 2009Application to appear as counsel pro hac vice (granted case)
Stephen B. Kinnaird application for pro hac vice admission on behalf of amici curiae Billy DeFrank LGBT Community Center et al. (to court for permission)
Jan 30 2009Order filed
The application of Consumer Attorneys of California to join in the amicus curiae brief filed by Concerned with Gender Equality et al. filed in support of petitioners is hereby granted.
Jan 30 2009Order filed
The application to add additional labor organizations as amici curiae to a brief already filed in support of petitioners and filed on behalf of California Federation of Labor, AFL-CIO, and 52 other organizations is hereby granted.
Feb 2 2009Application to appear as counsel pro hac vice granted
The application of Stephen B. Kinnaird of District of Columbia for admission pro hac vice to appear on behalf of amicus curiae Billy DeFrank LGBT Community Center et al. is hereby granted. (See Cal. Rules of Court, rule 9.40.)
Feb 3 2009Order filed
The court will allocate three hours to oral argument in these cases. Counsel for petitioners Strauss et al. will be allocated a total of 30 minutes for oral argument. Counsel for petitioners Tyler et al. will be allocated a total of 30 minutes for oral argument. Counsel for petitioners City and County of San Francisco et al. will be allocated a total of 30 minutes for oral argument. The Attorney General will be allocated a total of 30 minutes for oral argument. The Attorney General shall divide his time between his arguments in support of, and his argument in opposition to, the validity of Proposition 8. Counsel for interveners will be allocated a total of 60 minutes for oral argument. A request by a party or an amicus curiae to use a portion or all of another party's time must be made pursuant to California Rules of Court, rule 8.524. On or before Friday, February 27, 2009, counsel for each party (and counsel for any amicus curiae who is granted time for oral argument) shall serve and file a letter with the court indicating the issue or issues that each counsel intends to address in oral argument.
Feb 3 2009Request for Extended Media coverage Filed
By The California Channel by James Gualtieri
Feb 3 2009Case ordered on calendar
to be argued on Thursday, March 5, 2009, at 9:00 a.m., in San Francisco
Feb 4 2009Request for Extended Media coverage Granted
The request for extended media coverage, filed by The California Channel on February 3, 2009, is granted, subject to the conditions set forth in rule 1.150, California Rules of Court.
Feb 5 2009Received:
Application of City of Beverly Hills for Leave to join in the Amicus Curiae Brief Filed by the City of Berkely et al. (to court for permission) Laurence S. Wiener, counsel
Feb 5 2009Application to appear as counsel pro hac vice (granted case)
Margaret B. Drew to appear as pro hace vice on behalf of amici curiae Concerned with Gender Equality et al. (to court for permission)
Feb 6 2009Received:
Application of City of Sacramento for Leave to File Late Application for Joinder in the Amicus Curiae Brief Filed by the City of Berkeley et al. (to court for permission) Matthew D. Ruyak, counsel
Feb 6 2009Application to appear as counsel pro hac vice (granted case)
Julie F. Kay to appear as pro hace vice on behalf of amici curiae Concerned with Gender Equality et al. (to court for permission)
Feb 6 2009Application to appear as counsel pro hac vice granted
The application of Margaret B. Drew of Ohio for admission pro hac vice to appear on behalf of amicus curiae Concerned With Gender Equality et al. is hereby granted. (See Cal. Rules of Court, rule 9.40.)
Feb 6 2009Order filed
The application of the City of Beverly Hills for leave to join as amicus curiae to a brief already filed in support of petitioners and filed on behalf of City of Berkeley et al. is hereby granted.
Feb 9 2009Note: Mail returned (unable to forward)
copy of order granting extended media coverage filed by The California Channel on 2/3/09 that sent to attorney Dennis W. Chiu
Feb 9 2009Note: Mail returned (unable to forward)
copy of order re: oral argument sent to attorney Dennis W. Chiu
Feb 9 2009Note:
Spoke to attorney Dennis W. Chiu regarding the returned mail we received from the post office. The court has his correct address, but he is having trouble with the mailmen delivering the mail to him.
Feb 9 2009Note: Mail returned and re-sent
copy of orders filed on February 3 , 2009, and February 4, 2009, sent to attorney Frederick Brown
Feb 9 2009Request for Extended Media coverage Filed
By: The Associated Press by Stephanie Mullen
Feb 9 2009Request for Extended Media coverage Granted
The request for extended media coverage, filed by The Associated Press on February 9, 2009, is granted, subject to the conditions set forth in rule 1.150, California Rules of Court.
Feb 10 2009Received:
letter to the from attorney Dennis W. Chiu apologizing for the U.S. Postal Service's failure to delivery the mail, which required your staff to resend materials to me. He verifies his address and has attached a copy of his letter of complaint to the U.S. Postal Service, which he hopes will correct this matter.
Feb 11 2009Note: Mail returned and re-sent
copy of order dated 2/4/09 sent to attorney Lawrence J. Joseph
Feb 11 2009Application to appear as counsel pro hac vice granted
The application of Julie F. Kay of New York for admission pro hac vice to appear on behalf of amicus curiae Concerned With Gender Equality et al. is hereby granted.
Feb 11 2009Order filed
The application of City of Sacramento to join in the amicus curiae brief filed by City of Berkeley et al. filed in support of petitioners is hereby granted.
Feb 13 2009Application filed
Application to divide oral argument time filed by Christopher F. Stoll et al., counsel for National Center for Lesbian Rights et al. Petitioners for S168047, S168066 and S168078 jointly request to share 4 minutes apiece (for a total time of 12 minutes) to amici curiae Asian Pacific American Legal Center et al.
Feb 17 2009Note: Mail returned (unable to forward)
copy of order dated Feb. 9, 2009, sent to attorney Dennis Chiu
Feb 17 2009Note: Mail returned and re-sent
copy of order dated Feb. 4, 2009, sent to attorney Lester Aponte
Feb 17 2009Note: Mail returned and re-sent
copy of order dated Feb. 4, 2009, sent to attorney Jason H. Farber
Feb 17 2009Note: Mail returned and re-sent
copy of order dated Feb. 9, 2009, sent to attorney Lawrence J. Joseph
Feb 17 2009Note: Mail returned and re-sent
copy of order dated Feb. 9, 2009, sent to attorney Frederick Brown
Feb 17 2009Note: Mail returned and re-sent
copy of order dated Feb. 9, 2009, sent to attorney Michelle T. Friedland
Feb 17 2009Order filed
The following requests for judicial notice are GRANTED: (1) Request filed by the Attorney General on December 19, 2008, in support of answer brief filed on that date. (2) Request filed by interveners on December 19, 2008, in support of opposition brief filed on that date. (3) Request filed by City and County of San Francisco on January 5, 2009, in support of reply brief filed on that date. (4) Request filed by interveners on January 21, 2009, in support of answer to amicus curiae briefs filed on that date. (5) Request filed by amicus curiae Our Family Coalition and Colage on January 16, 2009, in support of amicus curiae brief filed on that date. (6) Request filed by amicus curiae Log Cabin Republicans on January 16, 2009, in support of amicus curiae brief filed on that date. The following requests for judicial notice are DENIED: (1) Request filed by amici curiae Steven Mattos et al. on January 16, 2009, in support of amicus curiae brief filed on that date. (2) Request filed by amici curiae California National Organization for Women et al. on January 15, 2009, in support of amicus curiae brief filed on that date.
Feb 18 2009Filed:
Notice of Errata regarding Application for Leave to Join Brief of Amici Curiae California Council of Churches et al. in support of petitioners. (with permission) Peter Perkowski, counsel
Feb 18 2009Filed:
brief entitled "CORRECTED Application for Leave to Join Brief of Amici Curiae California Council of Churches et al. in support of petitioners." (with permission) Peter E. Perkowski, counsel
Feb 19 2009Order filed
Petitioners' Joint Application to Grant Oral Argument Time to Amici Curiae, filed on February 18, 2009, requesting that petitioners in each of the three cases be permitted to share four minutes of oral argument time (for a total of 12 minutes of oral argument time) with counsel for amici Asian Pacific American Legal Center et al., is granted.
Feb 23 2009Received:
Application of City of Emeryville for Leave to join amicus curiae brief filed by the Ctiy of Berkeley et al. in support of petitioners (to court for permission)
Feb 23 2009Note: Mail returned (unable to forward)
copy of order dated Feb. 17, 2009, sent to attorney Dennis Chiu
Feb 25 2009Filed:
letter from Michael Maroko counsel for petitioners Robin Tyler et al., in response to the court's order dated February 3, 2009. Counsel intends to address the issues dealing with whether Proposition 8 constitutes a revision or an amendment of the California Constitution, whether Proposition 8 violates the separate of powers doctrine and whether Proposition 8 should be applied retroactively to same sex marriages performed prior to the adoption of Proposition 8.
Feb 25 2009Note: Mail returned (unable to forward)
copy of order dated Feb. 19, 2009, sent to attorney Dennis Chiu
Feb 25 2009Note: Mail returned and re-sent
copy of order dated Feb. 17, 2009, sent to attorney Michelle T. Friedland
Feb 26 2009Order filed
The application of the City of Emeryville to join in the amicus curiae brief filed by the City of Berkeley et al. in support of petitioners is hereby granted.
Feb 27 2009Filed:
letter from Raymond C. Marshall counsel for amicus curiae Asian Pacific American Legal Center et al. in response to the Court's order dated February 3, 2009. Counsel intends to address the following issues at oral argument: 1. Why Proposition 8 is a revision rather than an amendment because Proposition 8, if upheld, would (a) violate the principle of each protection for any minority group defined by a suspect classification and (b) prevent the Court from performing its core constitutional function of protecting individual and minority rights. 2. Why the possible existence of protection for such groups under the federal Constitution is irrelevant to the validity of Proposition 8 under the California Constitution.
Feb 27 2009Received:
Application of Southern Christian Leadershiop Conference of Greater Los Angeles for Leave to Join Brief of Amici Curiae Asian Pacific American Legal Center et al. (to court for permission) Steven D. Ashford, counsel
Feb 27 2009Filed:
letter from Kenneth W. Starr counsel for Interveners Dennis Hollingsworth et al. in response to the Court's order dated February 3, 2009. Counsel intends to address the following issues in oral argument: 1. The issues specified in this Court's order of November 19, 2008, namely: a. Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? b. Does Proposition 8 violate the separation of powers doctrine under the California Constitution? c. If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8? 2. The "inalienable rights" theory set forth at pages 75-90 in the Answer Brief filed by the Attorney General on December 19, 2008.
Feb 27 2009Filed:
letter from Christopher E. Krueger, Senior Assistant Attorney General, counsel for respondent Attorney General Brown in response to the court's order dated February 3, 2009. Counsel intends to focus issues listed in the Court's order dated November 19, 2008, as well as the issue regarding the constitutionality of Proposition 8 raised by the Attorney General's briefing. Respondent will also, of course, address any issue that the Court may raise at oral argument.
Feb 27 2009Filed:
letter from Therese M. Stewart, Chief Deputy City Attorney, counsel for petitioners City & County of San Francisco et al., in response to the Court's order dated February 3, 2009. Counsel plans to focus her argument on why the People must use the revision process set forth in California Constitution article XVIII, and not the amendment process, to enact a measure like Proposition 8. Counsel will be happy to address any questions the Court may have on this issue and any of the other issues raised in the case.
Feb 27 2009Filed:
letter from Shannon P. Minter counsel for petitioners Karen Strauss et al. in response to the Court's order dated February 3, 2009. Counsel would like to focus her argument on why the constitutional change made by Proposition 8 exceeds the limits of the initiative amendment power under California Constitution article XVIII, section 3. Counsel is also prepared to address any questions the Court may have on any of the other issues raised in the case.
Feb 27 2009Received:
Application of Chapman University President James Doti and Chapman University Trustee Wylie Aitken for Leave to Join amicus curiae brief filed by Individual Chapman University Organizations et al. (to court for permission)
Mar 2 2009Note: Mail returned and re-sent
copy of order dated February 19, 2009, sent to attorney Michelle Friedland
Mar 2 2009Order filed
The application of Southern Christian Leadership Conference of Greater Los Angeles to join in the amicus curiae brief filed by Asian Pacific American Legal Center et al. in support of petitioners is hereby granted.
Mar 2 2009Order filed
The application of Chapman University President James Doti and Chapman University Trustee Wyle Aiken to join in the amicus curiae brief filed by Individual Chapman University Organizations et al. in support of petitioners is hereby granted.
Mar 3 2009Note: Mail returned (unable to forward)
copy of order dated February 17, 2009, sent to attorney Dennis Chiu
Mar 3 2009Request for judicial notice filed (granted case)
Current and Former California Legislators, Amicus Curiae Ethan Dettmer, counsel
Mar 4 2009Filed:
Application of John C. Eastman, Dean of the Chapman University School of Law et al. in their individual capacities to join amicus curiae brief filed by the Center for Constitutional Jurisprudence in support of interveners and respondents. John C. Eastman, counsel (to court for permission)
Mar 4 2009Note: Mail returned and re-sent
copy of order dated February 19, 2009 sent to attorney Charles S. LiMandri
Mar 4 2009Order filed
The legislative resolutions appended to the request for judicial notice filed by legislative amici curiae on March 3, 2009, are accetped as a supplement to the amicus curiae brief previously filed by these amici curiae in these proceedings.
Mar 5 2009Cause argued and submitted
Mar 6 2009Order filed
The application of John C. Eastman, Dean of the Chapman University School of Law; Doy Henley, Chapman University Trustee; Timothy Busch, Member of the Chapman University School of Law Board of Visitors; Ronald D. Rotunda, The Doy and Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University School of Law; and John Yoo, Fletcher Jones Distinguished Visiting Professor, Chapman University School of Law, in their individual capacities for leave to join in the amicus curiae brief filed by the Center for Constitutional Jurisprudence in support of interveners is hereby granted.
Mar 6 2009Order filed
The legislative resolutions appended to the application of amici curiae John Emmanuel Domine, Bradley Eric Aouizerat, Betsy Jo Levine, and Lisa Lynn Brand seeking leave to apprise the court of the California Legislature's adoption of SR 7 and HR 5 on March 2, 2009, are accepted as a supplement to the amicus curiae brief previously filed by these amici curiae in these proceedings.
Mar 9 2009Received:
Amicus Curiae Brief in support of petitioners Gary Hallford in pro per. (to court for permission to file)
Mar 18 2009Application to file amicus curiae brief denied
The request to file an amicus curiae brief is denied as untimely. Amicus briefs in this matter were due on or before January 16, 2009.
Mar 18 2009Case consolidated with:
The three above entitled matters (Strauss v. Horton (S168047), Tyler v. State of California (S168066), City and County of San Francisco v. Horton (S168078)) are consolidated for decision.
Mar 22 2009Note: Mail returned (unable to forward)
copy of consolidation order sent to attorney Dennis Chiu
Mar 25 2009Note: Mail returned and re-sent
copy of order dated 3/18/09 sent to attorney Leslie E. Shear
Apr 6 2009Received:
letter, dated 4/3/2009, from State Solicitor General Manuel M. Medeiros, Office of the Attorney General, re Iowa Supreme Court's 4/3/09 decision.
May 21 2009Change of contact information filed for:
Laura Wolfe Brill old firm: Irell & Manella LLP new firm: KENDALL BRILL & KLIEGER LLP old address 1: 1800 Avenue of the Stars, Suite 900 new address 1: 10100 Santa Monica Blvd., Suite 1725 old zip ext: 4276 new zip ext: blank old phone: (310) 277-1010 new phone: (310) 556-2700 old fax: (310) 203-7199 new fax: (310) 556-2705 old email: lbrill@irell.com new email: lbrill@kbkfirm.com
May 21 2009Change of contact information filed for:
Richard Manning Simon old firm: Irell & Manella LLP new firm: KENDALL BRILL & KLIEGER LLP old address 1: 1800 Ave of The Stars #900 new address 1: 10100 Santa Monica Blvd., Suite 1725 old zip ext: 4276 new zip ext: blank old phone: (310) 277-1010 new phone: (310) 556-2700 old fax: (310) 203-7199 new fax: (310) 556-2705 old email: rsimon@irell.com new email: rsimon@kbkfirm.com
May 22 2009Notice of forthcoming opinion posted
May 26 2009Opinion filed
In each of the three cases before us, the request for a peremptory writ of mandate is denied. Each party shall bear its own costs. Majority Opinion by George, C. J., ----joined by Kennard, Baxter, Chin & Corrigan, JJ. Concurring Opinion by Kennard, J. Concurring Opinion by Werdegar, J. Concurring and Dissenting Opinion by Moreno, J.
Jun 5 2009Rehearing petition filed
Karen L. Strauss et al., by Shannon Minter, counsel
Jun 5 2009Request for judicial notice filed (Grant or AA case)
Karen L. Strauss et al., by Shannon Minter, counsel
Jun 10 2009Rehearing petition filed (another petition pending)
City and County of San Francisco, Petitioner by Erin Bernstein, counsel
Jun 17 2009Rehearing denied; opinon modified
The request for judicial notice, filed by petitioners in S168047 on June 5, 2009, in support of a petition for rehearing requesting modification of the opinion, is granted. The opinion is modified by separate order. The petition for rehearing is denied.
Jun 17 2009Opinion modified - no change in judgment
Jun 26 2009Note: Mail returned and re-sent
copy of order dated 6/17/09 sent to Benjamin W. Bull
Jun 26 2009Note: Mail returned (unable to forward)
copy of order dated 6/17/09 sent to Brian W. Raum
Jun 26 2009Letter sent to counsel: opinion now final

Briefs
Dec 19 2008Written return filed
and Answer to Amended Petition for Writ of Mandate Mark B. Horton as State Registrar of Vital Statistics, etc., et al., respondents. Kenneth C. Mennemeier, counsel
Dec 19 2008Written return filed
Edmund G. Brown, Respondent by Christopher Krueger, counsel
Jan 5 2009Reply to return filed
Karen L. Strauss et al., Petitioners Christopher F. Stoll, counsel
Jan 15 2009Amicus curiae brief filed
Margie Reilly in support of interveners.
Jan 15 2009Amicus curiae brief filed
The Church of the Messiah in support of interveners.
Jan 15 2009Amicus curiae brief filed
Labor in support of petitioners
Jan 15 2009Amicus curiae brief filed
Michael J. McDermott in pro se., in support of interneners.
Jan 15 2009Amicus curiae brief filed
Archbishop Mark Steven Shirilau, in pro se.
Jan 15 2009Amicus curiae brief filed
Jewish Family Service of Los Angeles
Jan 15 2009Amicus curiae brief filed
California National Organization for Women, et al.,
Jan 15 2009Amicus curiae brief filed
California Council of Churches, et al.,
Jan 15 2009Amicus curiae brief filed
Sacramento Lawyers for Equality of Gay and Lesbians
Jan 15 2009Amicus curiae brief filed
Concerned with Gender Equality, et al.,
Jan 16 2009Amicus curiae brief filed
Family Research Council in support of interveners Timothy Chandler, counsel
Jan 16 2009Amicus curiae brief filed
National Organization for Marriage California in support of interveners William C. Duncan, counsel
Jan 16 2009Amicus curiae brief filed
League of Women Voters of California in support of petitioners.
Jan 16 2009Amicus curiae brief filed
Love Honor Cherish in support of petitioners.
Jan 16 2009Amicus curiae brief filed
Pacific Yearly Meeting of the Religious Society of Friends, Santa Monica Monthly Meeting of the Religious Society of Friends, Orange Grove Monthly Meeting of the Religious Society of Friends
Jan 16 2009Amicus curiae brief filed
Professors of Law in support of interveners. Stephen Kent Ehat, counsel
Jan 16 2009Amicus curiae brief filed
City of Berkeley, City of Cloverdale, City of Davis, Town of Fairfax, County of Humboldt, City of Long Beach, City of Palm Springs, County of Sonoma and City of West Hollywood in support of
Jan 16 2009Amicus curiae brief filed
Eagle Forum Education & Legal Defense Fund in support of interveners. Lawrence J. Joseph, counsel
Jan 16 2009Amicus curiae brief filed
Faith in America, Inc., in support of petitioners. Cassandra S. Franklin, counsel
Jan 16 2009Amicus curiae brief filed
Current and Former California Legislators in support of petitioners. Ethan Dettmer, counsel
Jan 16 2009Amicus curiae brief filed
J. Rae Lovko and Jason E. Hasley in support of petitioners. in pro per
Jan 16 2009Amicus curiae brief filed
Beverly Hills Bar Association, California Women Lawyers, Women Lawyers Association of Los Angeles and Women Lawyers of Sacramento in support of petitioners.
Jan 16 2009Amicus curiae brief filed
Anti-Defamation League et al., in support of petitioners. Clifford S. Davidson, counsel
Jan 16 2009Amicus curiae brief filed
Alameda County Bar Association in support of petitioners. Elizabeth J. Cabraser, counsel
Jan 16 2009Amicus curiae brief filed
Asian Pacific American Legal Center et al. in support of petitioners. Raymond C. Marshall, counsel
Jan 16 2009Amicus curiae brief filed
Assoc. of Certified Family Law Specialiss and American Academy of Matrimonal Lawyers, No. Calif. Chapter. Leslie Ellen Shear, counsel
Jan 16 2009Amicus curiae brief filed
Advocates for Faith and Freedom, et al. Robert Tyler, counsel
Jan 16 2009Amicus curiae brief filed
Karl M. Manheim, in support of petitioners Susan Popik, counsel
Jan 16 2009Amicus curiae brief filed
Kingdom of Heaven, in support of respondents by D. Q. Mariette Do-Nguyen, in pro per
Jan 16 2009Amicus curiae brief filed
Our Family Coalition and COLAGE, in support of petitioners by Jason De Bretteville, counsel
Jan 16 2009Amicus curiae brief filed
for William Eskridge, Jr., et al., in support of petitioners, by Laurie Edelstein, Counsel
Jan 16 2009Amicus curiae brief filed
Reverend Dr. Frank M. Alton, et al., in support of petitioners. Timothy Cahn, counsel
Jan 16 2009Amicus curiae brief filed
for the Civil Rights Forum, in support of petitioners, by Lawrence A. Organ, counsel
Jan 16 2009Amicus curiae brief filed
San Francisco Chamber of Commerce, et al. in support of petitioners. Dean Hansell, counsel
Jan 16 2009Amicus curiae brief filed
San Francisco La Raza Lawyers Assoc., in support of petitioners. Troy Yoshino, counsel
Jan 16 2009Amicus curiae brief filed
Professors of State Constitutional Law, et al., in support of petitioners, by Elizabeth Harlan, Counsel
Jan 16 2009Amicus curiae brief filed
Human Rights Watch, et al., in support of petitioners, by Philip A. Leider, Counsel
Jan 16 2009Amicus curiae brief filed
Individual Chapman University Organizations, et al., in support of petitioners. M. Katherine Baird, counsel w/exhibits 1 volume
Jan 16 2009Amicus curiae brief filed
Marriage Equality USA in support of petitioners, by Jo Hoenninger and Shay Aaron Gilmore, Counsel
Jan 16 2009Amicus curiae brief filed
Steven Mattos, Amor Santiago, Harry Martin and Paul J. Dorian in support of petitioners. Dennis W. Chiu, counsel
Jan 16 2009Amicus curiae brief filed
California Teachers Assoc. in support of petitioners. Barbara Chisholm, counsel.
Jan 16 2009Amicus curiae brief filed
Erin Figueroa, et al., in support of petitioners, by Christopher L. Lebsock, Counsel
Jan 16 2009Amicus curiae brief filed
for Children's Law Center of Los Angeles, et al., in support of petitioners by Brett R. Wheeler, counsel.
Jan 16 2009Amicus curiae brief filed
Log Cabin Republicans, in support of petitioners by Dan Woods, counsel
Jan 16 2009Amicus curiae brief filed
for John E. Domine, et al., in support of petitioners by Stephan C. Volker, counsel.
Jan 16 2009Amicus curiae brief filed
Steven Meiers in support of respondents. in pro per
Jan 16 2009Amicus curiae brief filed
National Legal Foundation, in support of respondents by Eric I. Gutierrez, counsel
Jan 16 2009Amicus curiae brief filed
for the Center for Constitutional Jurisprudence, in support of interveners by David L. Llewellyn, Jr., counsel.
Jan 16 2009Amicus curiae brief filed
Professors of Family Law, in support of petitioners by Courtney G. Joslin, counsel
Jan 16 2009Amicus curiae brief filed
for Campaign for California Families in support of interveners by Mary E. McAlister, counsel.
Jan 16 2009Amicus curiae brief filed
for Constitutional and Civil Rights Law Professors, in support of petitioners by Lawrence R. Katzin, counsel.
Jan 16 2009Amicus curiae brief filed
Catholic Answers in support of interveners. Sarah E. Troupis, counsel
Jan 16 2009Amicus curiae brief filed
for Pacific Justice Institute, in support of interveners by Kevin T. Snider, counsel.
Jan 16 2009Amicus curiae brief filed
Billy DeFrank LGBT Community Center, et al., in support of petitioners by Eve Coddon, counsel
Jan 16 2009Amicus curiae brief filed
for James T. Linford, in support of petitioners by James T. Linford, counsel.
Jan 16 2009Amicus curiae brief filed
Suspect Class Californians in support of petitioners. Robert Lott, counsel
Jan 16 2009Amicus curiae brief filed
California Council of Churches et al., in support of petitioners by Peter E. Perkowski, counsel
Jan 16 2009Amicus curiae brief filed
by Samuel Rodrigues, in pro per, in support of respondents
Jan 16 2009Amicus curiae brief filed
C. Edwin Baker, Robert A. Burt and Kermit Roosevelt III in support of petitioners. Walter Rieman, counsel
Jan 16 2009Amicus curiae brief filed
Constitutional Law Center of the Monterey College of Law in support of petitioners. Joel Franklin, Michael W. Stamp and Amy M. Larson, counsel
Jan 16 2009Amicus curiae brief filed
American Center for Law and Justice et al. in support of interveners. Brian Chavez-Ochoa, counsel
Jan 20 2009Amicus curiae brief filed
Fidelis Center for Law and Policy in support of interveners Angelea C. Thompson, counsel
Jan 20 2009Amicus curiae brief filed
The California Catholic Conference, The United States Conference of Catholic Bishops, and The Union of Orthodox Jewish Congregations of America in support of interveners
Jan 21 2009Response to amicus curiae brief filed
By Interveners, Dennis Hollingsworth et al., and Supplemental Response to pages 75-90 of the Attorney General's Answer Brief.
Jan 21 2009Response to amicus curiae brief filed
by Petitioners, Karen L. Strauss, et al., by Shannon P. Minter, counsel
Jan 21 2009Response to amicus curiae brief filed
by The Attorney General by Christopher Krueger, counsel
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Feb 1, 2011
Annotated by eespinosa

Facts

This suit was filed in response to the approval of Proposition 8 in the California elections held on November 4, 2008. Proposition 8 added a new section, §7.5, to the California Constitution, which read: “Only marriage between a man and a woman is valid or recognized in California.” Supporters of Proposition 8 put it on the ballot after the California Supreme Court held in In re Marriage Cases (2008) 43 Cal.4th 757 that same-sex couples enjoyed the same constitutional right to marry as opposite-sex couples under the marriage statutes in force at the time. The Court held that limiting marriage to opposite-sex couples infringed on the due process rights and equal protection of the laws guaranteed by the California Constitution.

Procedural History

Immediately following the approval of Proposition 8 in the 2008 election, a number of law suits were filed that challenged its constitutionality. The California Supreme Court accepted three: Strauss et al. v. Horton, Tyler et al. v. The State of California et al. and City and County of San Francisco et al. v. Horton et al.. The Court heard the cases together and invited the parties to the cases it did not accept to submit amicus briefs.

Issues

The Court addressed the question of whether Proposition 8 is a permissible change to the California Constitution and, if it is a permissible change, what impact, if any, this has on the approximately 18,000 same-sex marriages that occurred before it was implemented.
Within this question the Court addressed a number of issues. The principle issue, according to the Court, concerned the “scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process so as to incorporate such a limitation as an explicit section of the state Constitution.” The Court was required to determine whether or not Proposition 8 constituted an amendment to the Constitution, which the voters can pass, or a revision to the Constitution, which cannot lawfully be adopted through the initiative process.
The Court also addressed petitioners’ claim that Proposition 8 violated the separation of powers doctrine embodied in the California Constitution. Additionally the Attorney General of California argued that Proposition 8 should be found invalid under the Constitution because it abrogates an “inalienable right” embodied in Article I, Section 1 of the Constitution. The Attorney General claimed that these rights cannot be limited without a “compelling state interest.”
Lastly, the Court considered whether or not Proposition 8 affected the validity of the same-sex marriages performed before the Proposition went into effect.

Holding

The California Supreme Court upheld Proposition 8. The Court determined that the Proposition was an amendment, not a revision to the Constitution because it adds “but a single, simple section to the Constitution” and did not have a even a minimal effect on the governmental plan or framework of California that existed prior to the amendment.
The Court held that there was no precedent for the argument that the rights in question were totally exempt from modification through a constitutional amendment. The Court also concluded that there was no merit to the claim that Proposition 8 violated the separation of powers doctrine.
The Court rejected the Attorney General’s argument that Proposition 8 impermissibly abrogated certain rights by finding that it only “carves out a narrow exception applicable only to access to the designation of the term ‘marriage’” but not to any of the substantive legal rights involved. The Court rejected all of the constitutional challenges to Proposition 8.
Finally the Court held that Proposition 8 could not be interpreted to apply retroactively, so all of the marriages performed before it was enacted remain valid and must be recognized.

Kennard, Concurring

Justice Kennard wrote a separate concurrence to stress the importance of upholding and protecting the right of California voters to amend the Constitution through the initiative process. Kennard also reiterated his view, stated in the Marriage Cases, that the issue of same sex marriage is a social and political one and not for the courts to decide.

Werdegar, Concurring

Justice Werdegar agreed with the majority that Proposition 8 was a valid amendment to the California Constitution. However, he rejected much of the majority’s reasoning regarding the definition of a constitutional revision. He argued that precedent did not support the majority’s definition.

Moreno, Dissenting

Justice Moreno disagreed with the majority’s ruling and said that he would have held that Proposition 8 was an invalid amendment to the California Constitution. He wrote, “…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.” Moreno argued that not only did Proposition 8 violate the equal protection rights of same-sex couples, it placed the constitution rights of any minority group at risk. He stated that the majority’s rule weakened the Constitution as a “bulwark” against discrimination.
Moreno did agree with the majority’s argument that Proposition 8 did not invalidate same-sex marriages performed before it went into effect.

Analysis

The Court begins its opinion by emphasizing that it is not their role to decide whether or not Proposition 8 is “wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution.” The Court stressed that it must carefully evaluate the issues before it regardless of their personal opinions about Proposition 8.
The Court analyzed the issue of whether or not Proposition 8 was an amendment or a revision to the Constitution in depth. An amendment to the Constitution can either be proposed by the legislature or a petition initiative. A revision, on the other hand, can only be proposed by a constitutional convention. Consequently, if Proposition 8 was a revision to the Constitution, it could not be passed through the initiative process. Under California law, an amendment is a discrete change to the Constitution, while a revision is a “wholesale or fundamental alteration of the constitutional structure.” There is a two prong test to determine whether or not something is a revision or an amendment. The Court “must asses (1) the meaning and scope of the constitutional change at issue, and (2) the effect – both quantitative and qualitative – that the constitutional change will have on the basic governmental plan or framework embodied in the preexisting provisions of the California Constitution.” The Court found that Proposition 8 had a fairly limited impact on the rights of same-sex couples because it does “not entirely repeal or abrogate” the due process rights and privacy rights discussed in the Marriage Cases. Additionally, the Court stated that Proposition 8 carved out a “narrow and limited exception to these state constitutional rights” because it limits the term “marriage” to opposite-sex couples. The Court stressed that they do not seek to minimize the importance of the term “marriage” but simply to accurately identify the impact on constitutional rights. Based on the above reasoning, the Court determined that Proposition 8 was an amendment, not a revision to the California Constitution.
Plaintiffs contended that Proposition 8 should be considered a revision regardless because it conflicts with a “fundamental constitutional principle that protects a minority group from having its constitutional rights diminished in any respect by majority vote.” However, the Court rejected this argument because the plaintiffs could not point to any precedent or authority that forbade voters restricting a constitutional right that had been interpreted through a judicial decision. While the Court acknowledges that equal protection is a fundamental constitutional principle, however, they argue that Proposition 8 did not completely repeal or eliminate this principle.
The Court similarly rejected all other constitutional challenges to Proposition 8, finding that it did not violate the separation of powers doctrine or readjudicate issues decided in the Marriage Cases.
The Attorney General introduce an argument that plaintiffs did not raise in their case. He argued that even if Proposition 8 was an amendment rather than a revision, it should be found invalid because inalienable rights in Article I, Section 1 of the California Constitution are not subject to abrogation by constitutional amendment without a compelling state interest. The Court found that this argument was flawed, because it overstated the impact of Proposition 8 on the rights of same-sex couples. The Court again emphasized that the Proposition only created a “narrow exception” to the use of the term “marriage.” The Court said that it would be overstepping its bounds by creating a new limit on the amendment power.
Lastly, the Court held that there was no reason to find that Proposition 8 should be applied retroactively. Consequently, all of the marriages performed after the Marriage Cases and before the enactment of Proposition 8 are still valid and must be recognized by the state.