The same sex marriage Prop 8 case will likely be decided by the California Supreme Court on an issue that will never be directly addressed by either the lawyers or the Court.
The primary legal issue at Thursday's hearing before the California Supreme Court on Prop 8 is the narrow and extremely arcane question whether Prop 8 is an amendment to the state constitution or a revision of the state constitution.
An amendment to the state constitution may be placed on the ballot by either a two-thirds vote in the state legislature or signatures equal to 8% of the votes cast in the last gubernatorial election.
In contrast, a revision of the state constitution requires both the approval of two-thirds of the legislature and a majority of voters.
In other words, while the voters in California have the right to amend their constitution by a simple majority vote through the use of ballot propositions, any revision of the constitution’s ‘underlying principles” requires a far more deliberate and complex process involving a two-thirds vote of the legislature followed by the submission of such proposed changes either directly to the voters or to a constitutional convention.
Prop 8 was never endorsed by two-thirds of the legislature.
Accordingly, if it is an amendment to the constitution, it is legally valid; if it is a revision of the constitution, then it is not.
There is little or no case law or commentary to help the Court decide whether Prop 8 is a (valid) amendment or an (invalid) revision.
The pro-Prop 8 lawyers will argue that the proposition changes only a small part of the constitution that applies only to a small group of people, and is therefore merely an amendment and hence valid.
The anti-Prop 8 lawyers will argue that because the proposition attempts to negate a fundamental right, it is a substantial revision of the constitution and hence invalid.
But appellate cases – and especially high profile and controversial appellate cases -- are rarely decided on such narrow and arcane questions of law, even though lawyers and judges must pretend that they are.
Such cases are decided on the basis of the judges’ assessments of their consequences, and not merely the direct consequences to the litigants.
What’s really at stake in the Prop 8 case – and what will probably be the real deciding factor in the California Supreme Court’s decision – is the power and prestige of the California Supreme Court itself.
Prop 8 aims to overturn the California Supreme Court’s 5-4 decision in The Marriage Cases (2008), where the Court held that “the 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,” and that “in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.”
If this decision of the California Supreme Court, based on what it described as a “fundamental constitutional right,” can be overturned by a simple majority of voters in a ballot proposition, then the purportedly “fundamental” state constitution carries no more weight than a simple statute -- and arguably even less weight, since a statute requires either the approval of a majority of the legislature and the signature of the governor or a two-thirds vote of the legislature.
And since appellate judges see themselves first and foremost as guardians of the constitution, if the constitution is diminished, then the judges are correspondingly diminished as well.
In our national history, the United States Supreme Court had little prestige until Chief Justice John Marshall declared in Marbury v. Madison (1819) that the Court, as the ultimate interpreter of the constitution, had the power to invalidate legislation as contrary to the constitution as (in the words of Article VI) “the supreme Law of the Land.” John Jay, the first Chief Justice, had resigned in 1795 and declined reappointment in 1800 because, in Jay’s words, the Court lacked “the energy, weight, and dignity which are essential to its affording due support to the national government.”
If the California Supreme Court fails to invalidate Prop 8, it will be declaring itself similarly to lack “the energy, weight, and dignity” that is essential for it to be a coequal branch of government.
For that reason, apart from and more importantly than any other, I expect that the Court will hold Prop 8 to be invalid.
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John Jacob Di Gasbarro
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Comments
God, I hope you're right.
I have one quibble with your post. You may be right that neither counsel nor the Court's opinion will expressly address the effect of the case on "the power and prestige of the California Supreme Court itself." The briefs do, however - and presumably the opinion will also - expressly address the issue whether "a 'fundamental constitutional right' can be overturned by a simple majority of voters in a ballot proposition." So to the extent your post implies (perhaps inadvertently) that the latter issue will lurk between the lines of the Court's decision rather than being discussed in it, I believe you are incorrect.
You're correct that the question whether a "fundamental constitutional right" can be overturned by a simple majority of voters will be addressed by the Court.
The point of my post was that behind this question of minority rights is the question of the Court's own power and prestige, and that -- for this reason -- the Court has a vested interest in invalidating Prop 8 in order to preserve its own "weight and dignity."
On the question of a possible "backlash" against the Court if they invalidate Prop 8:
It is true that courts, which lack both the police power of the executive and the popular mandate of the legislature, are sometimes reluctant to take unpopular positions.
In this case, however, the California Supreme Court would be in agreement with both the Governor and the majority of the state legislature in striking down Prop 8.
Nor would its decision to strike down Prop 8 be particularly unpopular -- Prop 8 won only a very narrow victory of approximately 52% to48%.
No doubt, if the Court does invalidate Prop 8, there will be calls by anti-gay extremists for the impeachment of the offending Justices. But this is a fight that the Court, and its proxies, would win, and probably come out stronger, and more respected, in the end.
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Count me in this camp. I hope this view prevails. It simply makes sense.
Our nation's Founders believed, and I agree, that the courts should be somewhat insulated from direct popular vote and -- more importantly -- that certain rights should be protected from mere majority vote.
Many states refused to approve the U.S. Constitution until it was agreed that these basic rights would explicitly be protected from the potential tyranny of the majority. Hence the first Congress approved the Bill of Rights, which was then quickly approved by the states.
There is also the question whether California's proposition system is as democratic as it might seem on its face. It costs hundreds of millions of dollars to run an effective state-wide proposition campaign -- far more than a state legislative campaign and even more than running for a U.S. Senate seat.
Given that you need access to hundreds of millions of dollars to win a proposition campaign, can you really say that the process is democratic?
Well, I have taken the Devil's side on the issue of gay marriage in other posts, so why not here too?
The traditional view of marriage in our country is that it is a committed relationship between two people of male and female gender, and surely this was the operative view at the time the California Constitution was adopted over 150 years ago. I'm sure the framers of the California Constitution would have been interested to know that they were giving tacit approval to an entirely new definition of marriage that would not appear until the 21st century. Of course they could not foresee that, but not to worry -- we simply ignore their view of marriage. It is completely NOT considered. Instead we take the California Constitution literally, in a kind of non-historical, fundamentalist way. So far so good.
But if the key phrase here is "a loving relationship," then why does the Court limit that to two individuals? If the gender requirement of traditional marriage is unconstitutional, what about the numeric requirement? Is there something constitutional about gender that number does not have? If a two-person same-sex arrangement constitutes "a vitally important attribute of the fundamental interest in liberty and personal autonomy," then what about a three-person arrangement? Two is constitutional, but three isn't, four isn't? I would like to hear the constitutional argument for that.
If we ditch the male-female requirement of marriage, then why not the two-person requirement as well, as long as everyone has "a loving relationship?" In other words, the same argument that supports same-sex marriage also supports "poly" relationships, as far as I can tell.
What I find very interesting is that the Court's 5 to 4 decision -- a majority of exactly one person -- you take as significant, while the actual citizen vote is described as "a very narrow victory of approximately 52% to 48%." So 1 person is definitive, while 4 percent of the voters -- around 600,000 votes -- is "narrow." You say that striking down Prop 8 would not be "particularly unpopular," even as "we the people" voted for it.
"What's REALLY at stake is whether or not the people still have a voice. If everytime a controversial decision is debated and voted upon it ends up in court then we are in real trouble here in America"
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My friend, civil rights are not subject to the plebiscite du jour. Sorry, a core function of our courts is the protection of minority rights. We're not talking about "everytime" here, the topic is the salient concern of THIS issue.
Peece,
DJ
I'll do my best to tune in....
Who I or you marry? Nobody's bidness.
You mean the "slippery slope?" No, there is no slope at all. It's just a matter of timing. The same argument that works against the male-female aspect of traditional marriage also works just as well against the two-person aspect. It's just that the same-sex marriage argument is being made today, and the more-than-two-person argument will be made next month or next year, and with the same justification -- the "loving relationship."
The votes of so-called "voters" will be irrelevant in both situations.
Jimenace: "The one that ends in inter-species marriages?"
No, absolutely not. Animals can't consent to marriage. We're talking about consenting human adults here. So that's not going to happen. But that's probably all that won't happen. Everything else will depend on judges.
Randy writes: "Who I or you marry? Nobody's bidness."
Yup. In gender today and quantity next year.
You may be correct and nothing will come of a reversal; the combination of Governor, Legislature, Court and 42% of the voters may be enough to prevent a backlash, but I do know that voters don't like it when Judges reverse initiatives and that can take on a life of it's own.
Nothing that costs hundreds of millions of dollars -- as would an effective recall movement directed toward the California Supreme Court -- can have "a life of its own."
Whether same sex marriage is a fundamental right protected by the (unamended) California constitution is not at issue – that question has already been answered in the affirmative by the Court in The Marriage Cases.
What is at issue is a question with a much larger scope – whether any fundamental right can be eliminated by a bare majority vote in a ballot proposition.
From your other posts and comments, I had figured you for a Jeffersonian thinker. So I would have expected you to be appalled at the idea that any fundamental constitutional right can be taken away by a simple majority vote, especially since I'm sure that you'd realize that the Court’s decision would not apply only to this particular right, but to all rights (your own rights included).
To those like Chad and DJohn who believe that the people might revolt if their will is thwarted by the Court, I would point out that the law already provides a clear and legal means to prohibit same sex marriage even if Prop 8 is invalidated – that is, use the political process to convince two-thirds of the legislature to revise the constitution (as has been process a for a change in the federal constitution since 1787).
This process seems to me to be both easier and more likely to meet with success than attacking the state capitol with pitch forks and small arms, although I can also see that it might not be as much fun.
- Peece, DJ
What I don't understand is that this issue was already raised in Bennett v. Bowen:
The National Center for Lesbian Rights, the American Civil Liberties Union, Equality California and the Lambda Legal Defense and Education Fund filed Bennett v. Bowen, S164520, on June 20, about five weeks after the California Supreme Court OK'd same-sex marriage. They argued that the proponents of Prop 8 had misstated the initiative's effects and that it was not a constitutional amendment as advertised but a constitutional revision that required legislative approval.
As I understand it, the California Supreme Court refused to hear the case. If Prop 8 was really a revision to the state constitution it should never have been allowed on the ballot, and the Court had the opportunity to do just that.
Here's how one scholar interpreted the Court's decision: ""I think it's a sign the court doesn't want to short-circuit the democratic process, and was worried about the appearance of overreaching after such a historic ruling in May," Elizabeth Hillman, a constitutional law professor at Hastings College of the Law, said Wednesday."
http://www.law.com/jsp/article.jsp?id=1202423046303
Question: if indeed the court didn't want to short-circuit the democratic process on the front end, why would they overturn it on the back end, especially since the revision/amendment argument was already made on the front end?
To overturn Prop 8 at this point would be like the Court first saying "go ahead and discern the will of the people," and then saying "oops, sorry, the will of the people is irrelevant" -- based on the very same legal argument they had already heard months in advance of the election.
I listened to most of the hearing today. It seemed to me that the Court was amenable to the view that fundamental or inherent rights could be overturned by a simple majority vote, because that in fact is all it takes to amend the constitution in California. As stated several times during the hearing, other states have more stringent requirements for amending their constitutions; California doesn't. One justice noted that perhaps it's too easy to amend the constitution, but that's the way it is.
Overall, it seemed to me that the justices generally agreed that the constitution is the people's constitution, and that the people have the right to pass possibly ill-conceived (and maybe even unfair) initiatives as long as the legal requirements are met.
The court also seemed to agree with the idea that Prop 8 wasn't a revision to the constitution -- that to carve out a specific exception to equal protection didn't constitute a general overthrow of equal protection per se.
The court seemed less amenable to the idea of reversing the 18,000 same-sex marriages that had already occurred, and I thought that was the weakest part of Ken Starr's argument.
On the "anti" side I thought the second male lawyer and the female lawyer were the most persuasive (persuasive in a rhetorical sense -- I don't have the background to evaluate the legal arguments). It appeared to me that the lawyer from the Attorney General's office did not help much; at times he seemed rather stumped. Of all presentations I thought Ken Starr's was the best, which kind of annoyed me since I don't like the guy very much. But overall I thought he was making the strongest arguments.
I'm not an attorney, and all the above is just what my untrained ears heard. If you stop by this post again I would be very interested in your take on the hearing.
Thanks very much for your comment.
I did say what I thought the deciding "issue" in the case would be: “the power and prestige of the California Supreme Court itself.”