California Court Splits the Baby

PHUTATORIUS

No, not an abortion case — post title notwithstanding — but the other issue that brings judge-haters into a froth: same-sex marriage.

Earlier today the California Supreme Court upheld the validity of a constitutional amendment that specifically overruled the Court's earlier decision that the state constitution required the government to allow same-sex marriage. Same-sex couples get civil unions in California, but they can't marry. The amendment, like many lousy ideas in California, made its way into law by ballot initiative. This is significant because same-sex marriage is classically a matter of minority rights. If a majority of people had favored extending the right to marry to same-sex couples, the Court likely (I say likely, because even in California there is representative government, such that not all these matters are resolved by popular plebiscite) would not have had to intervene in the first place. And that's the whole point of having a court decide matters of minority rights.

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Now of course, as I observed in an earlier post, it takes some modest amount of effort to pass a constitution-amending ballot initiative in California. It's not a simple matter of submitting the question to a majority vote: the measure has to pass with a 2/3 majority in both houses of the state legislature.

This additional requirement — and the California Court's endorsement of an admittedly discriminatory (in their own view) provision of law on the ground that the provision's ratification fully complied with it — means that the equal protection constitutionally due to political minorities in California can't be blithely pushed aside by political majorities. Rather, the political majority has to really want to reject and destroy that equal protection. And in that case, so long as the majority crosses its procedural t's, dots its electoral i's, and runs its bigoted television ads in the appropriate media markets, constitutional process can trump substance, and the minority's rights disappear.

But hey: easy come, easy go, right?

Really though: what gives? Justices who rejected preexisting legal impediments as discriminatory find no constitutional problem when the same oppositional forces organize to raise further impediments. What changed their minds? Were they well and truly convinced that Proposition 8 worked a constitutional amendment, rather than a revision?

I've often said (usually 100 comments deep into some blog post on Volokh.com) that courts have to stay ahead of the people on questions of minority rights, or else they, and the constitutions they vindicate, lose their relevance. On the other hand, they cannot press too far ahead, either, or they trigger a backlash — replete with the usual charges of "activist" judging and of "making law" — that threatens their legitimacy. Courts do not, after all, wear the pants in the government family. Their funding is at the mercy of the other branches, one of which employs the Fellows with the Guns. They rely on affable compliance from the agencies charged with enforcing their interpretations of law. In this respect our separation of powers, among other constitutional values, is a castle built on air. Judges know that if they push too hard, if could provoke defiance from the executive branches. The whole edifice collapses, and we're suddenly living in Zimbabwe.

(We all must rely, too, on the good sportsmanship of the Fellows with the Guns. This, to me, is why, whatever you think of George W. Bush, it was Brother Jeb in Florida who mounted more of a threat to our constitutional system. President Bush swallowed the constitutional medicine given him by Supreme Court justices who rejected certain of his anti-terror policies. Governor Bush sent troopers to stop the court-ordered removal of Terri Schiavo's feeding tube.)

This is one of those cases where the Court, having taken one giant step forward for Constitutional Relevance, takes a step backward to defend the Constitutional Castle. The Massachusetts Supreme Judicial Court beat a similar defensive retreat when, after ruling in favor of same-sex marriage and then emphatically rejecting the legislature's compromise proposal of civil unions, it rejected the bids of nonresident couples to solemnize their unions within the Commonwealth. Both rulings were, at their core, tactical decisions, made without regard to consistency or correctness. It simply defies logic to suggest that a constitution should protect a minority against the political whim of a legislature or plebiscite, but the same oppressive law is tolerable if the popular will is so concerted against that minority that both the legislature and the people, by popular vote, approve it.

But hey, a Court has to cover its ass, too.

In short, this is just the sort of decision that prudent jurists (and you don't get within sniffing distance of any high court bench unless you carry prudence in spades) will make to disperse the horde of right-wing psychopaths gathering outside the courthouse with their torches and pitchforks. Forty years ago, this Court might have held differently, but by now the political culture is so up in arms over "judicial activism" that judges see a real threat to their legitimacy in doing what's right. At worst, then, this decision attests to the power of judge-hating mobs to cow judges into voting their way. At best, the decision reflects a determination to protect the long-term legitimacy of the judiciary, even if common sense, basic principles of constitutional law, and the rights of thousands of loving couples are sacrificed.

In the end, I guess I'm writing to explain what the California Court did today, even though I can't excuse it. The Court split the baby — each side gets a decision in its favor — and the result was that a newborn right to marry died at its hand.