March 6, 2009

California Supreme Court Justices Will Decide Whether They or the People Get to Decide on Same-Sex Marriage

Hatched by Dafydd

The California Supreme Court (CSC) heard oral argument (no jokes, please) on the constitutionality of Proposition 8, the initiative constitutional amendment that overturned a 2008 CSC ruling that had itself overturned a previous initiative, 2000's Proposition 22, restricting marriage to a union between one man and one woman.

When voters enacted Proposition 22 eight years ago, they merely reaffirmed what had been the law in California ever since it was incorporated as a state in 1850; prior to 2008, same-sex marriage was never valid or allowed here.

There are three questions at issue in the current CSC case:

  1. Was Proposition 8 legally placed upon the ballot as an initiative constitutional amendment?
  2. Does it violate California's "separation of powers" constitutional doctrine?
  3. If the amendment is upheld, how does that affect the 18,000+ same-sex marriages performed during the few months between the imposition of the CSC's decision and passage of Proposition 8?

The bits we don't care about

Issues (2) and (3) are ancillary to the main event. I have yet to see any discussion of how Proposition 8 supposedly violates separation of power. For heaven's sake, it simply defines marriage!

Is the argument that only the courts should get to do that, not the legislature or the citizenry, who write the laws the court supposedly interprets? I cannot imagine anyone taking that suggestion seriously. In any event, nobody seems to be writing about it, so I really can't comment.

And the third point above -- how Proposition 8 affects those same-sex couples who married in the brief window of opportunity -- is irrelevant to the state and country as a whole, however vital it may be to the individuals involved. If the CSC chooses to allow them to remain married -- which seems quite likely to me -- it's only out of compassion, not principle: The court simply feels sorry for the victims of its own malfeasance.

(It wouldn't violate the equal protection clause of the federal or state constitutions, because it's not based upon "immutable" characteristics, even if one believes sexual preference is immutable, but upon the actions of the individuals... no more than any privilege that sunsets. If a gay couple made it to the altar on time, they're in; if not, they're out. No jokes, please.)

Straight to the meat of the matter

Only one argument could strike down the proposition itself: whether it was properly put on the ballot as an initiative constitutional amendment in the first place. At issue is whether it's simply an amendment, which has been part of the initiative process since 1911, I believe; or whether it's sweeping enough to be considered a constitutional revision.

A revision would have required a 2/3rds vote in both houses of our state legislature (the State Assembly and the State Senate) to place it on the ballot, or else the same 2/3rds vote to call a state constitutional convention. Since neither of those were undertaken, if the CSC should rule that Proposition 8 created a "fundamental change to the [state] Constitution," then it would be struck down under question (1).

However, this is an awfully tough argument to make... given that all the amendment does is reinstate a previous initiative statute, Proposition 22, using exactly the same language. And all that statute did was reaffirm the status quo ante. How can reinstating the reaffirmation of the previous understanding possibly amount to a "constitutional revision?"

Mr. Peabody's Way-Back machine

On March 7th, 2000, the people of the state voted to inact an initiative statute comprising the following 14 words:

Only marriage between a man and a woman is valid or recognized in California.

At this time, California Family Code section 300 defined marriage just that way anyway:

300. (a) Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute marriage. Consent must be followed by the issuance of a license and solemnization as authorized by this division, except as provided by Section 425 and Part 4 (commencing with Section 500).

Proposition 22 was a precautionary measure against the possibility that California courts might attempt to cram same-sex marriage down our throats (no jokes, please) -- which, as it turns out, was remarkably prescient. So for eight years, Californians believed that the question of same-sex marriage was settled -- at least until supporters could muster enough votes to enact it via their own initiative; they tried once, but it was a disaster for the revisionists.

(The state legislature in California cannot vote to nullify a citizens initiative; they can only vote to place a legislative initiative on the ballot to overturn a citizens initiative... but we get to vote on that.)

We were rudely shaken awake on May 15th, 2008, when the California Supreme Court issued the ruling In re Marriage Cases (2008) 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384], overturning the law enacted by 2000's Proposition 22 and all other statutes restricting marriage and the recognition of marriage to one man and one woman.

Four of the seven justices voted to overturn the will of the people of the state of California and legalize same-sex marriage; the names in parentheses are the governors who appointed each justice and the year appointed:

  • Chief Justice Ronald M. George (Pete Wilson-R, 1991/1996)
  • Associate Justice Joyce L. Kennard (George Deukmejian-R, 1989)
  • Associate Justice Kathryn Werdegar (Pete Wilson-R, 1991)
  • Associate Justice Carlos R. Moreno (Gray Davis-D, 2001)

The other three justices voted to preserve traditional marriage:

  • Associate Justice Marvin Baxter (George Deukmejian-R, 1991)
  • Associate Justice Ming Chin (Pete Wilson-R, 1996)
  • Associate Justice Carol Corrigan (Arnold Schwarzenegger-R, 2005)

The ruling took effect at the beginning of July, I believe. Since supporters of traditional marriage knew that the case was in the works, and knew that the court would probably rule the way it eventually did, Proposition 8 was already in the works. The initiative "title" -- that is, the description that appears on the ballot itself -- offered by those who qualified it for the ballot was "Limit on Marriage."

It qualified for the November ballot... and then, Attorney General Jerry Brown (yes, the former "Governor Moonbeam"), in a burst of unaccustomed neutrality on a contentious issue, decided to change the title to remove possible bias in the original title. Brown's version? "Eliminates Right of Same-Sex Couples to Marry!"

Despite this bit of skulduggery, the initiative passed by a margin of 4.6%, 52.3 to 47.7. This was significantly less than Proposition 22 had passed by in 2000; but it was a November ballot (which tend to lean more to the left), it had the Brown title, and it was during the Obama sweep of California... a remarkable achievement showing the true strength of California's support for traditional marriage (Hispanic voters pushed it over the top). The lawsuits were immediately filed to overturn it, and those are the cases that were just argued today in the California Supreme Court.

Back to the future

It's generally impossible to say for sure how the court will rule; but in this case, the lawsuit seeking to overturn Proposition 8 looks to be on shaky grounds. The attorneys for the groups seeking to overturn Proposition 8 in the tit-for-tat (no jokes, please) battle came in for some rough treatment from some of the justices... including two justices who actually voted to impose same-sex marriage on the state in the first place, Chief Justice Ronald M. George and Associate Justice Joyce L. Kennard. From the New York Times story linked above:

The toughest and most opinionated questioning came from Justice Joyce L. Kennard, one of four justices who had ruled in May that same-sex marriage was legal.

She said on Thursday that by passing Proposition 8, the voters did not invalidate that entire decision, but in effect changed the meaning of the term “marriage.” It left intact, she said, the substantive rights that the court had granted same-sex couples.

Justice Kennard asked Shannon Minter, the legal director of the National Center for Lesbian Rights, an opponent of the measure, a question that resonated in the hearing.

“Is it still your view,” she said, “that the sky has fallen in as a result of Proposition 8, and that gays and lesbians are left with nothing?”

Mr. Minter argued that if the court upheld Proposition 8, same-sex couples would have “our outsider status enshrined in our constitution.”

According to AP, Kennard went even farther and spoke even more directly to her thoughts on the case:

Justice Joyce Kennard said the court was being asked to decide between two rights - the right of the people to change the constitution and the right to marry.

"And what I'm picking up from the oral argument in this case is this court should willy-nilly disregard the will of the people," she said.

While it's difficult to read the entrails of supreme court oral argument, this does not sound like a justice who leans towards throwing out the persistent vote of the people -- across three elections -- in favor of restoring traditional marriage to California.

I find it even more unlikely that one of the three dissenting justices, who do not believe the state constitution mandates same-sex marriage, would believe that the non-right of same-sex couples to marry would trump the enumerated right of the citizenry of this fair state to amend their own constitution. So if even one of the four justices in the majority of In Re Marriage Cases is persuaded that, notwithstanding the propriety or wisdom of banning same-sex marriage, the voters had the right to do so, then that's it... Proposition 8 stands.

All coming together (no jokes, please)

Yesterday, I was worried; but I'm extremely optimistic today. I feared the four who looked at a constitution that had never even contemplated any but traditional marriage in 153 years of statehood, and saw a constitutional mandate for same-sex marriage, would squint even harder and see that mandate as ineradicable by mere voters (for our own good, of course).

But it seems at least two of the four-justice majority in the earlier case recognize the enormity of the California Supreme Court nullifying a constitutional amendment enacted by the citizens to overturn a previous decision by the California Supreme Court: It smacks of tyranny of the European kind.

But if this amendment is upheld, as I believe it will be, then we in the Golden State have struck a magnificent blow for the right of we citizens of the several states to craft our own government, regardless of what our would-be robed masters command. And of course, we'll have preserved traditional marriage in America's largest state, to the great benefit of Western Civ.

But I'm still keeping my rabbits' feet crossed.

Hatched by Dafydd on this day, March 6, 2009, at the time of 12:01 AM

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The following hissed in response by: nk

A provocative and stimulating post, Dafydd. The California Court decision may be the climax of the debate, but the Court is not bound by the arguments or issues chosen by the parties. It may choose to decide on Fourteenth Amendment grounds, shooting the question to the United States Supreme Court.

The above hissed in response by: nk [TypeKey Profile Page] at March 6, 2009 4:47 AM

The following hissed in response by: Geoman

re. gay marriage - I'm somewhat sympathetic to both sides of the argument. My own solution would be to make all marriages "civil unions", and "marriage" is reserved as a term for religions to define and use. Problem solved. Nobody happy.

The bigger issue, and the reason I have long opposed gay marriage advocates, is not only their inability to persuade a significant portion of the population to their argument, but their general disinterest in doing so. Cram it down every one's throats and to hell with the constitution and religion! I be induced to climb on board the bandwagon, but it always seems to be overcrowded with thugs and two-bit tyrants.

The above hissed in response by: Geoman [TypeKey Profile Page] at March 6, 2009 11:54 AM

The following hissed in response by: Ben Pugh

From a legal point of view, this case should be extremely simple. See my analysis here.

Of course, you can all probably figure out why this case has not been so simple - i.e., for all the same reasons the California Supreme Court ignored the law, Constitution and tradition in imposing gay marriage on us.

The above hissed in response by: Ben Pugh [TypeKey Profile Page] at March 6, 2009 12:48 PM

The following hissed in response by: Dick E


You Californians sure like hair spitting. (Sorry to ignore your multiple admonitions -- I couldn’t help myself.) What’s the difference between an amendment and a revision?

The complainants argued, apparently with a straight face (no jokes, please), that Prop. 8 was a revision, not an amendment. If the terms were adequately defined in your constitution, the argument should have been absurd on its face and summarily disallowed. (Or, alternatively, accepted without question.)

It sounds like something needs to change in the California constitution -- either to properly define the terms or to eliminate one of them. Now, would that take an amendment or a revision?

The above hissed in response by: Dick E [TypeKey Profile Page] at March 6, 2009 5:22 PM

The following hissed in response by: Da Coyote

Geoman says it exactly as I would. The thing that saddens me is that we cannot rely on the CA supremes to follow anything by the latest fad. If this is the practice of law, my respect for the profession no longer exists.

The above hissed in response by: Da Coyote [TypeKey Profile Page] at March 8, 2009 7:19 AM

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