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The California Supreme Court visits the Pottery Barn
Posted by civil truth on November 21st, 2008
Some of those who have been following the Proposition 8 drama (including my co-bloggers at ARS) may be puzzled as to why the California Supreme Court is reviewing the legitimacy of a constitutional amendment or what grounds that may have to do so.
First, by taking this case now, the California Supreme Court avoids months or years of uncertainty as cases challenging Proposition 8 wend their way through the lower courts, since whatever they do, the matter is going to get appealed to the highest state court.
Also, since they created this mess, they need to clean it up (also known as the Pottery Barn rule).
Proposition 8 was submitted in April. The CA Supreme Court, knowing that the proposition was coming up for a November vote, overturned the existing ban on gay marriage in May, ruling that gay marriage was a “fundamental right”, thus putting Proposition 8 on a direct collision course with the court and enabling the California AG and opponents to rephrase the initiative as taking away the “right” of gay marriage.
This issue of amendment vs revision points up the atypical feature of the California constitution and those of other states that allow constitutional amendment by plebiscite.
When you look at the U.S. Constitution and most organizational bylaws, these were adopted by a supermajority, and require supermajorities (at least 2/3rds) to amend them. The U.S Constitution has particularly high hurtles, not including a popular vote, which is why so few amendments have been successful. This supermajority legislative vote requirement is integral to what is her “revision”; a “major” change requires going through the revision process. In other words, “revision” corresponds to what we think of an “amendment” in reference to the U.S. Constitution
In addition to revision, there is also the provision for approving amendments to the CA constitution based on a popular vote, either by initiative with sufficient signatures or (I believe) by legislative action. These represent more minor changes – for instance, one of the requirements, if I remember correctly, is that an amendment can only deal with a single topic. Several initiatives have been thrown off or invalidated for violating that rule. Proposition 8 clearly does not suffer from that problem
In Michigan earlier this year, the court threw a stealth initiative off the ballot because it was clearly such a massive change in that state’s constitution that it had to go through the revision process. California has had only three initiatives thrown out by the court in its history on the grounds that they had to go through the revision process.
What makes Prop 8 rather unusual is that it, in effect, constitutes a “judicial referendum” on the CA Supreme Court’s May ruling (strictly speaking, referendum refer to efforts to annul a legislative action). I’m not a legal historian, so I’m sure whether this kind of action has occurred before with other initiatives seeking to explicitly overturn a Court constitutional ruling via amending the CA constitution.
In any case, with the court having in my opinion overstepped its bounds in creating a fundamental right to gay marriage in the first place, in defiance of a previously expressed vote of Californians in 2000 to bar gay marriage (a statutory initiative, Prop 22, that was therefore able to be overturned as a violation of the CA constitution), the court now needs to determine whether its powers extend to overturning a second vote – this time a constitutional amendment – by declaring it a revision. By having called gay marriage a “fundamental right” it at least opens the door to such an argument by a second bootstrapping line of reason.
That is, having used a bootstrapping argument to necessitate their legalization of gay marriage (including a specious analogy to “separate but equal” to appropriate the language and history of the black civil rights movement), the court could now further bootstrap (otherwise called begging the question) by saying that since (by their edict) gay marriage is a “fundamental right” granted by the California constitution (a right that no California Supreme Court hitherto has recognized before four justices bootstrapped their way to discovering it) then the voters don’t have the right to abrogate that right just by a simple majority vote.
A very clever edifice, but one which is built on sand, I’m afraid. Or at least, built on the court’s arrogantly arrogating to itself the sole ability to determine such unenumerated fundamental rights.
The separation of powers argument against Prop 8 apparently is that judicial review trumps constitutional amendment (which picks up on the “judicial referendum” aspect I referred to earlier).
Thus having started down this path with its April decision, the court needs to further delineate the limits of its power – and face the consequences.
Of course, if the court overturns Proposition 8, then it risks the “nuclear” voter option – a recall campaign against the judges who overturned Proposition 8. That is the ultimate exercise of voter power, but one which I believe would be justified in this case as a necessary check by the citizenry against egregious judicial overreach.
We’ll have to see whether the court decides to go down the perilous road. Since the gay marriage decision was 4-3, one vote switch would preserve Proposition 8 – at least until the pro-gay rights forces put another constitutional initiative on the ballot to reverse it and get the votes to pass it.
November 21st, 2008 at 10:50 am
If they overturn Prop 8, then California is governed by judicial fiat. It is that simple. The anti-Prop 8 crowd/thugs need to simply try to amend the state constitution to allowing marriage open to same-sex, multiple partners, interspecies, etc., etc., etc. Yes, I am saying that somewhat tongue-in-cheek because once we allow for certain behaviors, the rest of the freaks will come out from what ever rocks they’ve copulating under and ask for their “civil rights” as well…
November 21st, 2008 at 9:55 pm
Exactly. However, unlike the SCOTUS, California judges do undergo retention elections every ten years. Three of the justices come up for vote in 2010. And that is one vote they can’t overturn. I’m hope they’re weighing that in their minds even if the litigants are trying to avoid threatening them while the case is in argument.
I don’t think we have to worry much about the freak groups, since unlike the gays, they don’t have enough political thug muscle to get their way. And since the May decision was result-oriented jursiprudence (what I refer to as bootstrapping), where they twisted the law to achieve their desired outcome, the court should have no problem drawing whatever lines they wish, consistency be damned. Though the court may have a real problem enforcing current consanguinity restrictions on marriage when that issue comes up.
However, one of my principal purposes in writing this was to explain how the court by one act of judicial overreaching (creating a right to gay marriage) started down a slippery slope that forces them to now decide whether to continue down that slope or whether to bail out. They have to make a decision, and live with the cheers and jeers that will result – as well as the other actions that those on the losing end of their decision may engage in.
The other aspect was that I personally don’t think that constitutions should be amended by simple majority of the popular vote. This destroys the character of the document by the myriad of specialized accretions from various votes and facilitates judges taking a liberal interpretative approach to it, since it is so easy to change.
It also weakens the legislative brance and encourages them to abdicate their responsibilities for making tough decisions, which leads to badly crafted and hand-cuffing laws via initiative (since they require another vote for anything but tweaking) and encourages expansion of judicial power into the vacuum left by a cowardly legislature. I would limit plebliscites to statutes, not constitutional amendments.
Which is why in a vacuum, I would have had mixed feelings about Proposition 8: since I believe that marriage laws are a matter of legislation, not constitutional rights, I would normally oppose taking that issue out of the hands of the legislature. However, in the current environment of judicial overreach, I had no mixed feelings in choosing to override the court.
The irony is that if gay activists had not gone to courts around the nation to get courts to impose gay marriage, the California legislature would have approved gay marriage already and that there would not have been the support to overturn it via referendum. And the CA legislature already has provided gays with equal treatment via domestic partnerships.
However, the gay activists weren’t satisfied with equal protection; they wanted the imprimatur of societal approval of their sexual practices by capturing the label of “marriage” – and they wanted this imposed by the court rather than winning hearts and minds until they got a legislative majority – and thus have evoked a backlash in California and around the country.
November 21st, 2008 at 11:30 pm
The ease of the amendment process through a simple majority vote is probably as close to a true “democracy” as you can get. It is like what the third President of the United States said,
“A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine.”