Strauss

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 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. 418-440) culminates in this conclusion; “[T]he numerous past decisions of this court that have addressed…

“[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 [ 76 Cal.Rptr.3d 683 , 183 P.3d 384 ] (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 upon the ballot by the signatures of 8 percent of the number of persons who voted in the last gubernatorial election and…

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 [ 17 Cal.Rptr.3d 225 , 95 P.3d 459 ] (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-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 [ 76 Cal.Rptr.3d 683 , 183 P.3d 384 ] (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…

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 [ 76 Cal.Rptr.3d 683 , 183 P.3d 384 ] (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:…

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…