Saturday, March 07, 2009

Prop 8 Challenge - Oral Argument Impressions

I'm wondering whether Thursday's oral arguments at the California Supreme Court in the challenge against Prop 8 set a new "ratings" record for a court proceeding. In addition to the packed courtroom, there were jumbotron TV screens set up for crowds at San Francisco and LA City Halls and an auditorium in West Hollywood, and the proceeding was streamed live on the Internet, where it was watched by countless more. That's certainly a good thing in terms of civic interest as well as court transparency. I'm also wondering how many of those people really understood what the case was about. Contrary to the common understanding, this was not a case about gay marriage. While gay marriage was at stake, it was not at issue. What was at issue was a procedural question about "revising" versus "amending" the constitution, and the underlying crucial philosophical questions about the purpose of a constitution and the meaning of inalienable rights.

All four of the attorneys for the petitioners were very good, but as with their briefs, I thought that Therese Stewart (representing the City and County of San Francisco) most eloquently expressed the core principles at issue. She expounded the centrality of the protection of minorities against the majority in the drafting of the Constitution, and the deliberate distinction between a revision and an amendment as the people intentionally restraining themselves through the Constitution. While the small body of precedent concerning amendment vs revision has focused on "quantitative" or "structural" changes, at least some of the Justices seemed to agree that this was a case of first impression on the question of an amendment abridging a fundamental right with respect to a suspect class (i.e., exactly the sort of thing that would get tossed on equal protection grounds if enacted as statute), and further, that the grounds for revision were not necessarily limited to the categories of quantitative or structural change. I thought Stewart got the heart of it when she stated that the purpose of the Constitution, particularly of its Equal Protection clause, and of its separation of powers (checks and balances) is to protect politically vulnerable minorities, which is why structural changes require the revision process. But to put this safeguard against tinkering with the constitutional protection mechanisms to ensure liberty, but not to safeguard against direct assaults on liberty, would be to "defend the moat while letting the castle burn". (Her written brief presents the argument more eloquently than I can here in a brief blog.)

Unfortunately, the Court seemed pretty skeptical of the revision argument, both from reluctance to forge new ground (which is what they were being asked to do) and from remaining unpersuaded that Prop 8 was such a significant assault on equal protection. That latter was crucially disappointing, as Justices George and Kennard seemed to have forgotten what they wrote so forcefully last year. Both of them made repeated comments to the effect that Prop 8 was not really abridging signficant substantive rights, but that it was really just tinkering with nomenclature. Huh? They spoke as if the decision last year had been about some quantitative disparity between the treatment of marriage and domestic partnership, when in fact the whole issue was whether a difference only in nomenclature was a significant impairment of equal protection. Chief Justice George wrote for pages and pages on why nomenclature matters. And now: eh, it's just a name. I expect it was just seasoned discretion on the part of the petitioners counsel not to quote the Justices own opinions to them (the one time Stewart started down that road, Justice Kennard got very defensive).

There was also the "novel theory" from the Attorney General, who didn't do anyone any favors by needlessly undermining the petitioners' theory while advancing a novel one of his own, and then sending an inexperienced and not-well-prepared underling to advocate it. Jerry Brown should have had the cojones to defend his theory himself, especially in such a high profile case. This seems like political thinking all around: flip sides to be where he thinks would be more popular with his base, but then send someone else to argue the case so he can distance himself from a failure. It would be one thing if he had a junior attorney on his staff who was a classical liberal zealot steeped in John Stuart Mill and the other classical philosophy in which the novel theory was grounded, who could have argued passionately. But the attorney he sent was clearly not that, and he stumbled painfully in defending an argument he himself seemed not to clearly understand. Some potentially interesting philosophical ground was broached in the question of "inalienable rights", which rights are inalienable, what exactly inalienable means. Alas, no good answers were given. And it doesn't help that the California Constitution, having been amended some 500 times (as was repeatedly remarked), is rather a jumble. As C.J. George noted, reading from Article I, Section 1 (the "bill of rights") of the California Constitution, it identifies liberty, property, and privacy among the "inalienable" rights, but the same section also includes the right to fish, and the right to travel navigable waterways. Do Californians really have an inalienable right to fish?

One thing I was glad for was an affirmation of something I have been saying all along: that Prop 8 does not nullify the Court's decision of last May, and that the findings of sexual orientation being a suspect class, and marriage being a fundamental right entitled to strict scrutiny with regard to equal protection questions -- all of that is still in full force and good law, regardless of what happens in this challenge. That point was made emphatically and repeatedly by several of the Justices (particularly George and Kennard), and was agreed to by the intervenor counsel. The Justices also referred to the "constitutionalization" of the equal marriage rights, which if I understand their meaning, means that even though it was the legislature who created domestic partnership and has given it all of the same rights of marriage, it would violate the Constitution to take any of those rights away.

I was glad to see that the implications of upholding Prop 8 (or more accurately, holding that the voters of California may abridge a fundamental right against a suspect class by a bare 50%+1 majority) were laid bare. Intervenor counsel Kenneth Starr freely admitted that by the theory he was arguing for, a bare majority of the voters could amend the Constitution in practically unlimited ways, including deleting the right of free speech from the California Constitution, or by amending the Constitution to prohibit any legislation protecting the rights of gays and lesbians. Justice George mused that the problem may well be that the California Constitution is too easily amended, but that's a problem that should be resolved politically. (Hello, Sacramento? Can we get a legislative initiative to revise the amendment process? Certainly all the same legislators who earlier this week voted for the resolution that Prop 8 should have been a revision should support the codification of the principle behind the instance.)

There was also some discussion of the "split the baby" proposition offered by Pepperdine law professors Kmiec and Saxer in Sunday's San Francisco Chronicle. They ventured that the best way to reconcile the religious liberty interests of Proposition 8 with the equal protection interests of In Re Marriage Cases would be to have the state offer domestic partnerships to everyone and "marriage" (the nomenclature) to no one. Justice Chin was fascinated by this, and asked several of the attorneys whether that proposal would adequately resolve all of the issues at hand, and whether it was the province of the Court to impose that solution. Everyone (including Starr) agreed with the first part, but there was little enthusiasm for the second part (and a clear "no" from Starr).

I suppose we don't really know what the Justices are thinking, or what they will conclude, but for the most part they seemed surprisingly scrutable. It could be that they are merely masters at devil's advocacy, or it could be that they have pretty lousy poker faces. From what I saw, I concur with the consensus of observers that Prop 8 will be upheld, but the marriages that occurred within the legal window will also be upheld. That latter may even be unanimous. Starr seemed to be meeting skepticism all across the panel on that argument. (Just for the fun of prediction, I'll predict that Prop 8 is upheld 5-2, with Werdigar and Moreno in the minority, and the existing marriages are upheld unanimously.)

In the long run, upholding Prop 8 will be a good thing, as it will force us to win the political fight head on (which we're quite close to doing), rather than enabling the distraction of the "black-robed tyrants" complaint. And as a bonus, maybe this will even spur a revision of our state's out-of-control amendment process.

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