The Brief: Law School News and Events

Wolff Sees Dangerous Precedent in Using Ballot Box to Deny Rights

Wolff Much more was at stake under Proposition 8 than the right of same-sex couples to marry, says Penn Law Professor Tobias Barrington Wolff.

When the California Supreme Court upheld the statewide ban, it set a dangerous precedent for majorities to use the ballot to deprive a minority group of fundamental rights.

Earlier this year, Shannon Minter, legal director for National Center for Lesbian Rights, asked Wolff and his colleague Ray Marshall to write a brief challenging the constitutionality of Proposition 8, on behalf of a broad coalition of civil rights groups.

Wolff discussed the Proposition 8 litigation and his role in it in March. Proposition 8 was the result of a series of events sparked by San Francisco Mayor Gavin Newsom when he began issuing marriage licenses to same-sex couples in 2004. The action provoked a number of lawsuits from opponents and the Supreme Court decided that Newsom didn’t have the authority to bypass Proposition 22, a ballot initiative that had banned gay marriage in 2000. The court annulled the marriages.

In 2005 the City and County of San Francisco sued the State of California, and won at the trial court, only to have the decision overturned by the California Court of Appeals a year later. While the case was making its way through the justice system, Equality California, an advocacy group, had been lobbying the legislature to approve a gay marriage statute, said Wolff. The legislature passed the bill in late 2007, but Gov. Arnold Schwarzenegger vetoed it, saying the legislature didn’t have the authority to override Proposition 22. Schwarzenegger did, however, say that if the court struck down the ban, he would stand by it. These events “sent the signal that political institutions were supportive,” said Wolff.

A few months later, the California Supreme Court reviewed the case and lifted the ban on gay marriage. In response, opponents of same-sex marriage essentially resurrected Proposition 22, a state statute, as Proposition 8, a proposed amendment to the state constitution. They launched the most expensive campaign in U.S. history, spending approximately $80 million to get the law back on the books, said Wolff.

In the brief, Wolff and Marshall argued that the gay marriage issue cannot be resolved through a ballot measure, because serious changes to the state constitution require more than a simple majority vote. The constitution distinguishes between amendments that can be made through ballot initiatives and those that involve significant changes and require approval from two-thirds of the legislature. The court has the power to decide which initiatives can be decided through the ballot.

The precedent for the gay marriage case is not favorable, said Wolff. In the 1980s voters reinstated the death penalty after the Supreme Court struck it down. The court upheld the reinstatement, saying that the issue could be decided by the ballot.

Minter represented the opposition before the Supreme Court in March, but Wolff felt the questioning was “very hostile.” The Chief Justice took Minter to task over the use of the word marriage, in spite of the fact that he had previously written an “extraordinary opinion” on the difference between marriage and civil unions, said Wolff. In its May 26 decision the court upheld Proposition 8 but did not annul the approximately 18,000 marriages that took place in the interim. Wolff predicted that the issue might reappear on the ballot in several years.