Will the California Supreme Court Strike Down Prop 8, or "Willy-Nilly Disregard" Its Duty?

If the March 5 oral argument before the California Supreme Court was any guide (which oral argument isn't always), Chief Justice Ronald George may be on the verge of making a terrible, heartbreaking mistake.

The Court is due to rule soon on a set of challenges to Proposition 8, the November ballot-measure that stripped the freedom to marry away from committed same-sex couples. The challenges are supported by preeminent African-American, Hispanic, and Asian/Pacific civil rights organizations; cities such as San Francisco and Los Angeles; teachers and child-welfare professionals; religious leaders; businesses and labor unions; and advocates for same-sex couples and their families. All of them have asked the Court to uphold the bedrock principle of American constitutional government that a simple majority may not selectively vote away a fundamental right from a minority targeted for invidious, suspect reasons.

Most who saw the oral argument perceived Chief Justice George and Justice Joyce Kennard as straining to justify their apparently likely votes to uphold Prop 8. Their barrage of hostile questions and comments suggested that the civil rights advocates were asking the Court to, in Justice Kennard's words, "willy-nilly disregard the will of the people." But in fact the Constitution — itself the "ultimate expression of the people's will," as Chief Justice George recalled in 2008 — spells out two separate procedures for change: one for ordinary "amendments," the other for more significant "revisions" such as Prop 8. Revisions, the Constitution says, require a more deliberate, careful process including review and a greater-than-mere majority vote by the Legislature before a measure is placed on the ballot. The Prop 8 forces chose not to follow the rules, including the constitutional safeguard against willy-nilly votes mandated, yes, by the people themselves. Indeed, shortly before the argument, the Legislature passed a resolution urging the Court to strike down Prop 8 because the Prop 8 forces in their zeal deprived the Legislature of its constitutional responsibility to review the measure.

The Court has the duty to strike down Prop 8, a measure that, while it received a narrow majority, should not have been on the ballot in the first place. The Court should explain that the interests of all of us, even a temporarily disgruntled majority, are better served when the rules are upheld. The Court should remind the public that, as the U.S. Supreme Court has said, "There is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally." That restraining principle is an essential pillar of equal protection. The very idea that the Court would permit a simple majority to even inadvertently discard such a defining element of the Constitution is distressing.

But, shockingly, the Chief Justice spoke as if his hands were tied by the mere fact of the November vote, the legitimacy of which is the very issue before the Court. He did not explain that equal protection at a minimum obliges the majority to itself abide by whatever treatment it imposes on a minority — a core structural principle eviscerated by Prop 8, which removed the fundamental right to marry for the gay minority alone while retaining that precious right for the majority. Rather, Chief Justice George appeared to profess helplessness in the face of precedents on how to distinguish a revision from a mere amendment. However, it was the Court itself that set those precedents, which themselves did not preclude logical extension should an unprecedented situation require further vigilance. As Justice Kathryn Werdeger and other justices noted, Prop 8 is exactly such an unprecedented assault. To build on and beyond precedents where warranted is why we have judges, not just law books.

Never before has the Court allowed a fundamental right to be voted away from a targeted minority. Never before has the Court taken the invitation of a lawyer, such as Prop 8's Ken Starr, to set a precedent that, as Starr repeatedly conceded, would put no state constitutional limitation on a future majority's ability to vote away protections against race or sex discrimination or cherished freedoms such as speech, worship, or, yes, the freedom to marry — the "essence" of which, the California Supreme Court explained in 1948 when it became the first court in the U.S. with the courage to strike down race restrictions on marriage, is the right "to join in marriage with the person of one's choice," the person who to you may be "irreplaceable." Imagine what California and our country would look like today had that court flinched in the face of the 90% disapproval of the then-majority. Imagine what the Constitution would look like if a mere majority could always cement inequality or a selective denial of fundamental rights into it, without even the procedural protection of the deliberative revision process the people themselves set forth.

As destructive and tragic as a new precedent upholding Prop 8 would be, however, that's not even the potential mistake to which I referred at the beginning. Chief Justice George's and Justice Kennard 's exchanges at oral argument suggested that they may be about to minimize their own ringing and legacy-shaping 2008 Marriage Cases opinions, apparently as a way of avoiding the obligation to follow through and strike down Prop 8. They seemed to suggest that the selective stripping away of marriage was not all that significant, that because same-sex couples still would have partnership rights, their forced exclusion from marriage was a matter of mere "nomenclature." This was the most unkindest cut of all.

Hearing dismissive characterizations such as "nomenclature" during oral argument, it was hard to believe that here was the same courageous judge's judge who less than a year ago wrote the following in Marriage Cases [emphasis added]:

"Because of the long and celebrated history of the term "marriage" and the widespread understanding that this term describes a union unreservedly approved and favored by the community, there clearly is a considerable and undeniable symbolic importance to this designation. Thus, it is apparent that affording access to this designation exclusively to opposite-sex couples, while providing same-sex couples access to only a novel alternative designation, realistically must be viewed as constituting significantly unequal treatment to same-sex couples."

"[P]articularly in light of the historic disparagement of and discrimination against gay persons, there is a very significant risk that retaining a distinction in nomenclature with regard to this most fundamental of relationships whereby the term "marriage" is denied only to same-sex couples inevitably will cause the new parallel institution that has been made available to those couples to be viewed as of a lesser stature than marriage and, in effect, as a mark of second-class citizenship."

"[R]etaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples."

"[A]lthough the meaning of the term 'marriage' is well understood by the public generally, the status of domestic partnership is not. While it is true that this circumstance may change over time, it is difficult to deny that the unfamiliarity of the term 'domestic partnership' is likely, for a considerable period of time, to pose significant difficulties and complications for same-sex couples, and perhaps more poignantly for their children, that would not be presented if, like opposite-sex couples, same-sex couples were permitted access to the established and well-understood family relationship of marriage."

The Chief Justice was right in Marriage Cases when he wrote these and other similar passages, and would be horribly wrong now to trivialize or turn away from them. It is no answer to say that Prop 8 changed the Constitution; the very question before the Court is whether such a profound revision withdrawing equal protection and a recognized fundamental freedom is permitted.

At various civil rights moments in American history, the courts' vital role in enforcing equal protection, and judges themselves, have come under tremendous pressure. Recall, for instance, the "Impeach Earl Warren" billboards following Brown v. Board of Education, the vitriol against the California Supreme Court when it had to strike down a 1964 constitutional change that undermined protections against race-discrimination, and the Rovian campaign of intimidation waged against so-called "activist judges" these past 8 Bush years. Its shining moment in standing up against such intimidation, in addition to its right result on marriage and equal citizenship for lesbian and gay Americans, was why I and millions cheered the Court's courage and clarity in 2008. In Marriage Cases, we saw a court do its job, and do it right.

Unlike right-wing opponents of equality, who denounce and seek to punish courts for doing their job, I criticize only when they flinch or fail to do it. If the Court, and if this Chief Justice, vote to uphold Prop 8's damaging blow to American constitutional principles, it will be a terrible mistake, failing their obligation under and to the California Constitution. If in so doing, they compound that mistake by selling short, or sidling away from, the truths set forth so powerfully in Chief Justice George's 2008 ruling — the fundamental nature of the freedom to marry, the way in which exclusion from marriage itself denies equality and imposes the stigma of second-class citizenship — they will do a powerful disservice to the people, to the Constitution, and to history, which for the moment still ranks them alongside the judges who struck down race discrimination and the subordination of women in marriage in the face of the passions of the moment, and were vindicated. Failure of judgment and duty now will tarnish their own legacy, wreak real harm on gay people and their loved ones, and shatter the faith of millions in the courts and their legitimate and crucial role in our constitutional system.

To be remembered, after all, for these missed stakes, would be heartbreaking.

Comments

[jeri hughes]

revision, nomenclature, amendments.... all reduced to useless verbiage. a law that does not provide law abiding citizens equal protection under that law is instutionally approved bigotry. equal protection, equal rights. the world is not fair, and it is not equal. but without equal protection, the world lives under mob rule. wolfson and peers are defending equal protection. i don't understand how ANYONE could fail to comprehend and appreciate this most basic reality, especially those who have suffered from discrimination. equality for some, but not for others, does not equate.

[rextrek]

Interesting how a country (OUR COUNTRY) ..constantly BOASTS about Freedom this,and Freedom that…”Liberty & Justice for All” blah blah blah…..EMPTY Meaningless words..that mean SQUAT!

STOP calingl it GAY MARRIAGE - It’s Marriage EQUALITY
STOP calling it SAME SEX MARRIAGE - We do NOT call hetero Marriage “Opposite Sex Marriage”

If you don’t like Marriage Equality - then DON’T marry someone of the same sex
NO Religion will be forced to Marry anyone they deem “unworthy”
NO Religion will be Locked up or Fined for speaking out against LGBT people - tho Tony Perkins and the AFA WILL LIE and say otherwise(even tho that’s something Jesus would NEVER do..IF he ever existed)

America - LIVE UP TO YOUR Constant spread of LIES about Personal Freedoms..Either we are ALL Free, or NONE of us are!

When in America has the Public EVER gotten to VOTE on any other Minority Rights? THEY HAVEN’T!
When in America was Religion USED to FIGHT Equality for Blacks,Women etc etc……TOO MANY TIMES to COUNT!!!

[carsntrucks]

I wasn't aware that you had a fundamental right to marriage licensure from the state to confer the same benefits the state gives to biological couples because of their fecundity. Sorry. We're just so blind not to see that state-sanctioned, taxpayer-funded marital benefits -- like social security, welfare, and the G.I. Bill -- are fundamental rights.

[rextrek]

I find this whole thing sickening....almost every Western Civilized country has Equality for it's LGBT population...but NOT America? Liberty & Justice for All my ass.....they are just pretty words on an empty Marque'...­....empty,­meaningles­s words...spouted by a Boastful nation that doesn't stand behind said words!~!!

[itmaybetoolate]

I guess we will go down in American history as the one minority against whom prejudice, hate and discrimination will be tolerated. As distasteful as this is to straight America, there is no national outcry - not now, and, I suspect, not ever. There is no nuance here - it is wrong to deny us the same right to marry that is enjoyed by heterosexuals.

[carsntrucks]

Evan, you're basically doing the one thing that keeps me from supporting same-sex marriage: you're racheting up your claim to it by alluding to these ideas about equality and "fundamental rights" when you know that's not how the law surrounding this issue works, nor is it the way the people view it.

"The Chief Justice was right in Marriage Cases when he wrote these and other similar passages, and would be horribly wrong now to trivialize or turn away from them. It is no answer to say that Prop 8 changed the Constitution; the very question before the Court is whether such a profound revision withdrawing equal protection and a recognized fundamental freedom is permitted."

A "profound revision change" would be if CA moved to a Parliamentary system instead of a legislature. Considering there was no codified right to marry in the Constitution, I'm not sure what you're talking about regarding Equal Protection. LGBTs don't face criminalization of any sort by not receiving the title "marriage", especially when they already have domestic partnerships. The idea that this is a matter of nomenclature is accurate. This isn't equality under the law. LGBTs in CA have that. This is about having the title "marriage" affixed to their unions, and claiming there's a constitutional right to it. You and I both know there isn't one.

[itmaybetoolate]

So there is no "fundamental right" to marry? And if a ballot measure eliminating marital rights for all was passed in California, you would think that is fine?

[carsntrucks]

If the people voted for it, yes. I wouldn't agree with it, if that's what you are asking.

[BeninOakland]

I am afraid that you are incorrect on this matter, and our "legal team", and mr. wolfson, have continually ignored it. One issue that MUST be addressed under the rubric of equal protection is this pernicious and false belief that Domestic Partnership confers exactly the same rights under California law as marriage. Not only does DP stop at the state line, which marriage does not, but there is one other extremely significant difference: No one will ever vote on any heterosexual's right to marry as often and badly as they wish, provided they are legally eligible. But, if they can vote to "disappear" my marriage, then they can vote to "disappear" my domestic partnership as well. And they would have done so if they thought they could have gotten away with it. Let us not forget that there was another petition being circulated by Randy Thomason which would have done exactly that. That is WHY DP is just not oging to work.

[carsntrucks]

So I'm guessing any minute now I'll be hearing about someone going to court to strike down domestic partnerships as being invidious and discriminatory?

I'm not holding my breath.

[midknightryder13]

The SCOTUS, no less, disagrees with you about marriage being a right. They in fact called it a "basic civil right' in Loving v Virginia -- that was handed down about 50 years ago.

[carsntrucks]

In defense of, and as a referral to, a heterosexual interracial couple.

[useyourbrain]

perhaps we could put up an initiative that states that since marriage is only for the production of children, that no one can get married without either first reproducing, or sign an contract to re-produce within a few years of marriage or forfeit all taxes and benefits plus interest and penalties. also, m/f couples would have to prove they can procreate. So any couple with one or more sterile partners or if they won't swear that they will reproduce or if they are too old to reproduce, then they should be prohibited from marriage.

then we can put up christianity to a majority vote to see if it should be banned and any practitioner of said "religion" shall be fined, have to register with the state as a "religious predator" and be put in prison.

[PlaceboStudman]

The fact that Califorrnia has already allowed petitioners to gather signatures for a new ballot measure in 2010 seems to indicate which way the court will decide. Regardless of the WHY of their final decision, it is the final decision that matters in the end, and that final decision will drastically and permanently change the lives of a whole lot of good loving caring people. And if the court's decision is to uphold Prop 8, I hope that Californans, and everyone for whom gay marriage is important lets the california supreme court know that their actions will negatively affect millions of people's lives, whereas if they overturn prop 8 (not very likely I know), then only a few hypocrits and religious zealot bigots will be inconvenienced when their belief is challenged

[randyjet]

From what I can see of this rather stupid argument, the writer would HAVE to hold the DRAFT as being ILLEGAL too. I do NOT take such a position since I am a liberal, NOT a Libertarian. The position is a far right one, not a progressive one.

[BeninOakland]

I have said repeatedly that I am not a lawyer. And yet, here I see one more lawyer touting his whole amendment-­vs.-revisi­on thing, which seems to me to be the weakest possible argument, and one which the supremes have rejected repeatedly, and did not refer to themselves.
So I'll say this one more time: anything that does not talk about prejudice, religion, and children, and avoids the topics of freedom of religion, religious prejudice, our families, equality before the law, historical discrimination against gay people, and the grafting of conservative religious belief onto secular civil law...
if we are not going to talk about the REAL issues here, then we are just wasting our time. I'm not intertested in donating a nickel or a minute of my time in supporting anything other than an out-of-the-closet campaign.
The enemy is NOT the Religulous Reich and the knuckle draggers. It is THE CLOSET, and has always been so.I would rather lose this battle because we have told the truth, than lose it because we have lied and hidden ourselves in shame.

[useyourbrain]

revision vs. amendment is a weak argument? save us if that argument is rejected since it means any and all rights can be voted away by a "majority" of those who voted, not of those who can vote or of the population. this was not even a majority vote of the people of California. this is why it is even more insidious and, the fact that the people -- through their elected representatives - twice voted for same-sex marriage only to be vetoed by our coward governator who said, believe it or not, it was an issue for the courts. we have gone beyond the looking glass.

[JohnBisceglia]

Evan, a more terrible and heartbreaking mistake is the Q community's tolerance for governmental abuse and psychological bullying.

If we do not REVOLT (if PROP 8 stands), then I question if we truly BELIEVE we deserve these rights in the first place. Seriously. We're dealing with our own family's SAFETY and SECURITY for God's sake. Isn't that worth MORE than calling in Gay For A Day?! We SHOULD have took to the streets the millisecond our government allowed a VOTE on our family's legal worth.

But I'm sure we will return to holding Equality Fundraisers so we can "PAY OFF THE BULLY", play the victim, and act as if we need to convince others of our legal worth BEFORE attaining Full Federal Equality. Our collective Q mental health is questionable, given what science has discovered about brain development in children and the kind of social environment they NEED to grow up well-balanced and healthy. It's a miracle most of us make it out of high school without committing suicide. As a group we collectively have some serious self-esteem issues based on HOW we have fought inequality for the past 30 years. If you ain't revolting you ain't angry enough (yet).

(finally, some sanity)
EQUALITY & RELIGIOUS FREEDOM ACT
http://www.equalitygiving.org/Blueprint-for-LGBT-Equality