Wednesday, May 27, 2009

The Prop 8 Decision

To some disappointment but little surprise, the Calif Supreme Court announced that they were upholding Prop 8 as a valid amendment to the Calif Constitution, and they were also upholding the existing marriages. Needless to say, George and I were relieved that our own marriage continues to be valid and recognized by the state of California, but sad that other gay and lesbian couples will not be able to similarly enjoy full equality in California (for now). As a matter of policy, I think it will be better in the long run for California to fix this at the ballot box rather than in the courthouse, and I believe that's fully achievable in a few years (if not next year). Politically, overturning the amendment would have had a corrosive effect on the faith of people in our political process, as few would have understood the technical legal arguments supporting an overturn. It would have widely been seen as an activist or result-oriented decision, undermining the credibility of the Court, not just among the rabid wingnuts but among more reasonable people as well.

Legally, while I thought that the arguments for overturning the amendment were well-grounded in the philosophy of constitutional democracy, I also think that the Supreme Court did the right thing here. They interpreted the Constitution as it is written, and not as it ought to be written. Their regret, that our state constitution is too easily amended and does not adequately provide protection against the abridgement of fundamental rights, was manifest. They practically proposed an amendment to remedy that, pointing to specific language in the constitutions of other states that explicitly protects fundamental rights. (But would that be a revision?) Their conservative decision belied the accusations of liberal activist judging that were levied by those who didn't like the Marriage Cases decision.

On the upside, the Court went out of their way to emphasize how much of the Marriage Cases opinion is still good law. The Court affirmed the finding of the constitutional right of same-sex couples to "choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage", that that right is fundamental (embodied in the constitutional right to privacy and due process), and that same-sex orientation is a suspect class. And note that while the Marriage Cases opinion was 4-3, all 7 justices signed onto or concurred with this affirmation. (The three dissenting justices from the Marriage Cases all signed on to the majority opinion here.)
Further, the Court reasoned that because Prop 8 did conflict with a fundamental right, legal construction rules required it to be interpreted as narrowly and specifically as possible. The opinion went on to spell out exactly how constrained that interpretation would be: Prop 8 constrains the designation of "marriage", and nothing more. It does not touch any of the substantive rights found in the right to marry. Thus, if any of the anti-equality folks harbored secret hopes of using the constitutional amendment as a beachhead to dismantle domestic partnerships, those hopes were pre-empted by this opinion. The Court prospectively interpreted Prop 8 as narrowly as possible, dug a moat around it, put yellow police tape around that, and said "move along folks, nothing to see here…" (Though the Court does not properly do prospective interpretation per se, they cleverly worked it in as an essential part of their amendment vs. revision analysis.) And of course the narrow construction included unanimously upholding the 18,000 pre-Prop 8 marriages.

The Court was as positive as it could be about same-sex marriage in a case which marriage wasn't directly at issue. The actual legal issue at hand was the ability of the people of California to enact constitutional amendments that abridge fundamental rights, a question which boiled down to technicalities about "amendments" versus "revisions". And the unfortunate answer is that it appears that 51% of the voters in a single election can indeed amend the state constitution to curtail "inalienable" rights, with the only backstop being the U.S. Constitution. Thus, with amendments, the appeal to the independent interpretation of the state constitution, so zealously guarded by the Court in Raven v. Deukmejian, is out the window. The Court even suggested that had the revision vs. amendment argument been raised in Mulkey v. Reitman (a 1964 initiative constitutional amendment overturning legislation that outlawed racial covenant restrictions in real estate transactions), it would have been upheld as validly enacted (though it was struck down as violating the U.S. Constitution). While this is causing some alarm among minority and civil rights groups, we should follow their advice and direct our energies toward fixing this flaw in our state constitution, rather than get mad at the judges who are just interpreting it as it is.

That being said, I do have to applaud Justice Moreno's passionate dissent. I'm glad there was a voice of dissent, scolding the other justices for backing away from their own strongly articulated Marriage Cases holding that even a difference "in name only" can create substantive unequal protection of the law. When it's time for Scalia to be replaced, I hope they consider Justice Moreno. That would be karmic balance.

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