I think that Andrew Sullivan summed up the views of many people (some fair-minded, some not) to yesterday’s prop 8 decision with this statement:
“For my part, I will leave the fine legal analysis to those trained in these matters (and link to them).1 Politically, this seems to me the perfect decision. It would have been dreadful if voters were retroactively told their valid vote was somehow null and void – it would have felt like a bait and switch and provoked a horrible backlash.”
Politically, I agree: The court did the right thing. As a countermajoritarian institution, it risks compromising the credibility and good will on which it depends (or used to, before Bush v. Gore) when it’s seen as subverting popular will. The opinion went as far as it could to affirm the rights of gay couples without actually throwing out Prop 8. The court: valididated the marriages already entered into; reiterated that distinctions based on sexual orientation will continue to be subject to the highest level of scrutiny; affirmed that same-sex couples enjoy all of the rights of marriage (albeit without the label); and stated that constitutional amendments will be narrowly construed to do minimal violence to the court’s role in the protection of minority rights.
But the decision never should have been left to the voters in the first place. Here’s a point that I’ve not seen made:
Before Prop 8 appeared on the ballot, the court had the opportunity to decide that the proposed initiative was an impermissible revision rather than an amendment, and therefore should not have appeared on the November ballot. The court declined to consider the matter. (See pages 21-22 of pdf of case, which you can find here.) Once it made that decision, the court might be seen as having committed itself to upholding the results of Prop 8 — otherwise, they might fairly have been asked why they put everyone through an expensive, wrenching, and divisive “exercise.”
OK, that’s the politics of it. What about the law? In my reaction post yesterday, I wailed — yea, keened — about the majority getting to decide my rights. My plaint elicited this response (from a far-right-of-center gay Texan):
“Well of course people get to vote on your rights. Where do you think your rights come from? Or, to put it another way, how do you know when something is a right? Because you say so?”
Does it all come down to who has the most votes? Well, yes and no. One reason for the constitutional guarantee of equality might be described in this way (as set forth, roughly, by the philosopher John Rawls): We all imagine ourselves behind a ‘veil of ignorance’ — knowing, generally, what society is like and the various sorts of roles and positions (rich/poor; white/of color; gay/straight) that exist within that society but not knowing “who” we will be within that society. So positioned, we’d want to create a government, a society, perhaps even a constitution that would offer fair terms (not necessarily equality of outcome) to everyone. This cardinal principle calls for something like an equal protection clause, to ensure enforcement of the bargain that we struck, as a constitutional matter, in forming our society. Hold onto your hat as I quote Justice Scalia favorably: Equal protection “requires the democratic majority to accept for themselves and their loved ones what they impose on you and me.2
So there’s the answer. Equal protection occupies a deep, even central part of the law and serves as a good part of its justification.
And now I can move to my analysis of Justice Moreno’s dissent in Strauss v. Horton (the Prop 8 case). He spends the first several pages discussing the fundamental promise of equal protection, and concludes by stating that the guarantee of equality “cannot depend on the will of the majority for its enforcement, for it is the will of the majority against which the equal protection clause is designed to protect.” Thus, you don’t (or shouldn’t) get to vote on my rights where your vote deprives me (or any other class) of equal protection.
Justice Moreno’s dissent undertakes two discrete tasks; one easy, one less so. The easier job is to eviscerate the majority’s holding that Prop 8 constitutes a constitutionally permissible deprivation of equality. As I did yesterday, Justice Moreno notes the inconsistency between the court’s statements in last year’s In Re Marriage Cases holding and it said in upholding Prop 8. Last year, the distinction in name between marriage (straight couples) and domestic partnerships (gay couples) was unconstitutional because it “impinge[d] upon a same-sex couple’s fundamental interest in having their family relationship accorded the same dignity and respect enjoyed by opposite sex couples[,]” and treated us as “second-class citizens.” And here’s the money quote from In Re Marriage Cases, which the majority now surely wishes it could retract:
“There exists a substantial risk that a judicial decision upholding the differential treatment of opposite-sex and same-sex couples would be understood as validating a more general proposition that our state…has repudiated: that it is permissible, under the law, for society to treat gay individuals and same-sex couples differently from and less favorably than, heterosexuals individuals and opposite-sex couples.”
In yesterday’s decision, the court, er, issued “a judicial decision upholding the differential treatment of opposite-sex and same-sex couples….” (How’s that for an exercise of ipsissima verba?)3 It has thereby “validated” the proposition that unequal treatment of gays and lesbians is permissible.
The court, and particularly Justice Werdegar in her concurrence, tried to mitigate the effect of what it was allowing; the majority by declining to consider whether wholesale deprivation of rights could constitute a permissible amendment to the state’s constitution; and Werdegar by simply announcing that only l’il deprivations would be OK. Justice Moreno would admit of no compromise here: equality means, well, equality: “Promising equal treatment that is almost equal is fundamentally different from ensuring truly equal treatment.” (Partial Dissent, page 6.) And he did this pointedly, because there’s no difference, logically, between the inequality countenanced here and more sweeping deprivations of rights. Moreno lists what the majority had derisively referred to as a “parade of horribles,” pointing out that nothing would prevent a simply majority of Californians (at least under the state’s constitution) from enacting limitations on freedom of religion; interracial marriage; the rights of women to pursue businesses or professions — and there’s no end to it.
Justice Moreno is devastating and, to me at least, unanswerable on the equality issue. But there’s still the matter of the processes for effecting constitutional change in California. As a reminder, the issue is whether the change is sufficiently fundamental to constitute a revision of the constitution, or a less sweeping amendment. (Only an amendment can be approved by a simple majority within prior legislative approval.) The precedent isn’t particularly good for Justice Moreno, but he deftly handles the problem.
First, he foregrounds his discussion of the precedential cases by looking into the history of the initiative process, finding that when it was introduced (in 1911), the goal was to grapple with the issue of government corruption, and the stranglehold of corporate power that had compromised both the judiciary and the legislature. He finds no indication that anyone intended “to prevent courts from performing their traditional constitutional function of protecting persecuted minorities from the majority will.” (p. 10)
As for the precedent, he handles the toughest case — in which the court upheld an initiative that found the death penalty not to be “cruel and unusual” punishment — rather straightforwardly: It wasn’t a majority opinion, having been signed onto by only three of seven justices. Other decisions that affected minorities were about permissible remedies for constitutional problems (school busing, for example), not about the substance of the underlying right. He then focuses on the single best case for his position: Raven v. Deukmejian, 52 Cal.3d 336 (1990), in which the court struck down a voter initiative that would have effectively stripped the court of jurisdiction on matters of state constitutional interpretation in criminal procedure cases. In upholding Prop 8, he notes, the court is allowing itself to be similarly stripped of the power to interpret its own constitutional guarantee of equality.
This case, in short, fundamentally weakens the equal protection clause, and therefore can only be seen as a revision to the state’s constitution.