May 26, 2009

Supremes Do the Right Thing

Hatched by Dafydd

The California Supreme Court has handed down its decision on Proposition 8, the citizen initiative constitutional amendment that overturned a previous California Supreme Court decision, In re Marriage Cases (2008) 43 Cal.4th 757; Marriage Cases had held that the state's restriction of marriage to a union between one man and one woman -- as embodied by an earlier initiative enacted in 2000 (Proposition 22), by a previous 1977 law, and by law as commonly understood from the state's incorporation as a state in the United States in 1850 -- was nevertheless unconstitutional under the equal protection clause.

The court did not reverse that decision today; none of the justices voted that the ruling in Marriage Cases was wrong. But the court did find that Proposition 8 was likewise a valid state constitutional amendment, not a "revision" of the constitution, which would have required legislative approval before being placed upon the ballot. The vote was a healthy 6 to 1.

The net effect is that California is now firmly back in the traditional marriage camp -- except for the roughly 18,000 marriages that occurred in the brief window after the ruling in Marriage Cases took effect but before Proposition 8 was passed.

Chief Justice Ronald George wrote the opinion, which was joined by Justices Joyce Kennard, Marvin Baxter, Ming Chin, and Carol Corrigan. Justice Kathryn Werdegar wrote her own opinion concurring in the judgment that Proposition 8 was a valid amendment, but "dissenting" (so to speak) from the reasoning: She held that the majority was wrong to restrict the definition of constitutional revision to a change that fundamentally altered the way the state governed, as opposed to impinging only upon an individual right.

Werdegar held that an impingement upon an individual right, were it substantial enough, could still constitute a "revision" that requires legislative approval before it can be placed before voters. But she held as a substantive matter that Proposition 8 did not impinge in such a manner upon the fundamental right of equal protection under the law, hence was a valid amendment that required only a petition circulated among voters to qualify for the ballot.

(Interestingly, Werdegar was among the majority in Marriage Cases that held that same-sex marriage was required by the fundamental right of equal protection. I strongly disagree with her on that point; but I'm closer to agreement with her on the procedural question of what can constitute a constitutional "revision" than I am with the rest of the majority.)

The only complete dissent came from Justice Carlos Moreno (who was also, like Werdegar, in the pro-same-sex marriage majority on Marriage Cases). By a most curious coincidence, Moreno also happens to be the only justice on the court appointed by a Democrat, Gray Davis. The other six were all appointed by Republicans: George, Werdegar, and Chin by Pete Wilson; Kennard and Baxter by George Deukmeijian; and Corrigan by Arnold Schwarzenegger.

Ergo, the six justices appointed by Republican governors had great deference for the right of the people of the state of California to enact and amend their own constitution, while the sole justice appointed by a Democrat thought that his interpretation of newly minted "fundamental" rights (which no justice before that day had dreamt existed) trumped the right of the people to determine their own style of government.

Please bear that distinction in mind the next time you are confronted with a vote for chief executive in your state or for President of the United States: Not only do words have meanings and actions have consequences, but so too do political parties.

Now let the leftist circus begin!

Hatched by Dafydd on this day, May 26, 2009, at the time of 11:32 AM

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