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.

Q & A: The Constitutional Conundrum of the Proposition 8 Litigation

PHUTATORIUS
Q. Can anti-Proposition 8 interests really get the California Supreme Court to invalidate a constitutional amendment?

A. They can try. That's how the Court ruled last week.

It looks like one "surface question" for the Court to consider is to what extent the constitutional change to ban same-sex marriage must be accomplished by "revision" rather than "amendment." The words sure do sound synonymous, but under the California constitution they are terms of art: an amendment requires only a two-thirds vote in both houses of the legislature, followed by an up-down majority ballot-initiative vote — as happened here. A revision requires the convening, after a two-thirds vote in both houses to proceed, of a constitutional convention.

Naturally, the California constitution doesn't say a heck of a lot (nothing, actually) about what sort of measures are appropriate for amendment and what sort ought to run the more rigorous procedural gantlet. But the general gist of the law on this point is that the little piddling changes are the stuff of amendments, whereas the grander "what are we doing to our government?" questions are appropriately resolved by revision.

The second "surface question" is whether it violates the constitutional separation of powers for the legislature to prepare a ballot initiative that would overrule a decision by the state's highest court on a matter of a fundamental right.

I talk of "surface questions" because these two questions, which the Court specifically designated as appropriate for judicial review, are really the constitutional "hooks" for considering the real matter at hand: what should happen when you have a general antidiscrimination principle in your constitution that, when applied in a specific case, results in a ruling that extends a right to a political minority, and then the legislature pushes through a plebiscite that results in the overrule of the Court's decision by a majority vote?

The separation of powers question taps in this issue because it's the judiciary, by and large, that bears the responsibility of protecting the rights of political minorities (especially "discrete and insular" political minorities) from incursion by the "majority rules" political branches. This is arguably a court's most important constitutional responsibility. Although practices vary (quite a lot of state court judges are elected, and not life-tenured), we expect judges to insulate themselves from the political exigencies of the moment. When a constitution promises equal protection under the law, and the government fails to deliver, it's the judges' gig to set things right. The notion that a court's exercise of this solemn responsibility merely bats the ball back cross-court to the legislature — so it can take another swing — seems constitutionally problematic.

About as problematic is the notion that protections constitutionally conferred on political minorities might be blithely overrided by a fast-track amendment process that requires only the approval of the legislature (by a 2/3 supermajority in both houses, admittedly), followed by a ballot initiative. A constitution is hardly protective of minorities of any kind if a majority can amend it to preclude those protections, simply by virtue of majority rule. So the California Supreme Court finds itself asked by the anti-Prop 8 litigants to push this issue into the category of very significant constitutional changes that must be wrought by revision, and not by amendment.

As someone who supports same-sex marriage and the constitutional role of the judiciary in protecting the rights of minority groups, I find the plaintiffs' arguments pretty compelling here. But there are important arguments to consider on the other side: in our state and federal systems we generally accept that the judiciary has the last word on constitutional matters, and the concentration of that power in the hands of very few is easier to swallow when we know there's an amendment process out there — just in case. While I don't think that amendment process was appropriately invoked here, and I would support an invalidation of Prop 8, things necessarily get a bit dicey when a court invalidates a constitutional amendment that overrules a decision that invalidated state action. We surely wouldn't want that same court to get too comfortable acting in that fashion. These controversies are always a game of chicken between the legislature and the courts, and each new round of action brings the cars closer to crashing.

What's brilliant about the legal arguments here is that the Court isn't required to favor one constitutional dictum (don't discriminate . . .) over another (. . . but in this one case it's OK). Massachusetts almost got to this point on the same-sex marriage issue, and at least one Justice in the Supreme Judicial Court rumbled that, notwithstanding that the proposed amendment articulated a specific exception to the general antidiscrimination mandate, he might just rule that some constitutional requirements (specifically, the bits that call for equal protection) are more equal than others. The California court has an out, and the anti-Prop 8 plaintiffs found it: this ballot initiative doesn't make it into the constitution, because it ought to take more than a legislative vote and ballot initiative to undercut minority rights.

It's not controversial to accept that the people can amend their constitutions, and that these amendments might even overrule considered constitutional decisions of a polity's highest court. But some thought should be given to calibrating the amendment process so that amendment doesn't simply give the people a second crack at instituting discriminatory policies against a minority. Amending a constitution ought to be hard, and it ought to be especially hard if the amendment would limit minority rights. Prop 8 proponents will argue that the 2/3, two-houses supermajority precondition to the ballot initiative is hard enough. I expect that the California Supreme Court will disagree, and rather than wage branch-on-branch warfare on a separation of powers theory, it will rule that a marriage ban was a matter for revision, not amendment, and invalidate Prop 8.

The big question is, if the Court so holds, and the people go back and push through a marriage ban by revision, will there be more litigation? Still more chicken to be played in California — stay tuned.