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Justice Moreno: Prop 8’s Lone Dissenter

May 27th, 2009 1 comment

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.

He’s right.

  1. And thanks for the link, by the way.
  2. Cruzan v. Director of Missouri Department of Health, 497 U.S. 261, 300 (concurring opinion).
  3. OK, I stumbled across this phrase while looking up something else and couldn’t resist using it. It means: “the exact language used by someone quoted.”

Three Acts on Prop 8: II

March 5th, 2009 No comments

Well, perhaps I should have expected this: The overwhelming demand for access to the streaming video of the oral argument on Prop 8 means that I couldn’t get on line for quite some time. I just did and I’ll try to catch us up.

Within a few minutes, this looks quite grim. Two of the justices who had voted with the majority to are all over amici attorney Marshall, telling him that the California Constitution gives the voters quite broad ability to amend their constitution, and that Prop 8 is only “a limited exception” to equal protection.Now the discussion is about abolishing marriages in favor of civil unions for everyone. The attorney makes the argument that “nomenclature matters” citing Justice George’s opinion in the earlier case and answers a question by Justice Chin, to the effect that the state, if it’s going to get involved in the “marriage business” needs to do it equally.

The argument has moved to a discussion of the precedent, with Justice Werdeger asking whether there’s ever been a case where a fundamental right has been taken away — and the answer is no. She floats the idea that even if this isn’t a structural revision, it takes away fundamental rights and this IS a revision even if it doesn’t change the basic separation of powers. Justice George slams this, noting that busing and affirmative action referenda have been upheld and these affect fundamental rights (even though the revision v. amendment issue didn’t come up there).

Justice Corrigan tries to boil down the argument, suggesting that the “No on 8” forces are really arguing that any time you want to take a fundamental right away from a suspect class, it’s a revision. That simple. Justice George, who is up for reelection within the next couple of years, questioned whether you could grant a fundamental right through amendment but only take it away through revision. “Is it a one-way street?” Yes, said the attorney.

Justice Kennard finally got to the issue of retroactivity. Are the marriages performed before Prop 8 passed valid? Language in the Prop 8 materials says that “whenever and wherever performed” won’t be recognized. Attorney concedes that this could be read to invalidate marriages, but that (prodded by Kennard) this language is buried in the materials and shouldn’t suffice to overcome the presumption of non-retroactivity.

Next comes an attorney Stewart, representing the cities and towns and we’re back to retroactivity. She says that the language has to be unequivocal. She then fields a softball question suggesting due process problems with invalidating marriages retroactively. Kennard jumps in to help, reminding Stewart that the “whenever and wherever performed” is buried in the fifth paragraph of the rebuttal argument. Her vote on this issue is clear (to me). George wants to test the proposed test for revision proposed here. Asks about same-sex schools, or busing, and whether the proposed rule would render them revisions. Stewart stands firm and says yes.    

Stewart is devastating on the foundational importance of the equal protection guarantee as a compact “to treat each other equally.” Kennard disagrees, says that equal protection is evolving, unlike the structure of government. Stewart says that the fact that we interpret them in light of what we know at a particular time doesn’t make them unimportant. (Well, duh! But are they foundational? She didn’t really answer that.) Justice Kennard noted that sixty-three briefs have been filed, many stating that those justices who agreed that marriages must be granted to to same-sex couples must find Prop 8 invalid. She disagrees. Here, the issue is different: We have a pretty well-established body of law on what’s a revision and what is not. The cases don’t give strong support to the petitioner’s position, she says flatly. It simply overrules one “aspect” of the marriage cases. (Huh?) Cites other cases from other states supporting the position that this is amendment, not revision.

Stewart: This is fundamental. Majorities can protect themselves. She gets deeply into the statements of delegates in creating the state’s constitution, to powerful rhetorical effect.Now comes Mr. Krueger representing Attorney General Gerry Brown,  who has taken the unusual position that it doesn’t matter whether this is a revision or an amendment: It is simply invalid because beyond the power of the voters to remove a fundamental right. Here, I have lost the feed and will pause for air until I get it back (soon, I hope).   

Let’s see, I’ve missed about five minutes. Now Krueger is saying that the court interpreted the right to liberty in a way to make amending it to take this right away impossible. Now George is reading from the constitution’s description of the inalienable rights, including liberty. How do we define it? What’s the consequence of calling it “inalienable”? Krueger: We call it inalienable because it came first within the constitution. George: It’s just a matter of timing? Privacy, for example, came later. Is that less important? What about the right to fish?? So what is the right that can’t be removed? Krueger: The right to liberty.

Baxter is now asking about the death penalty situation, where the court held that capital punishment was cruel and unusual and against the “dignity of man” and the amendment process was validly used to effectively overrule that decision. This attorney for the state is clearly flummoxed now, but regains his footing somewhat. But I’m not sure Baxter (or anyone else) was convinced by his efforts. Krueger is having trouble. Not sufficiently versed in the case law. Does make the case that revisions can’t be used to take away inalienable rights. Interesting point is that the intervenors are disagreeing with the “natural law” argument — since so-called “natural law” seems to ground most of the arguments against same-sex marriage.        

Justice Kennard goes back to the breadth of the amendment power as provided by the California constitution. She’s getting annoying at this point, with endless non-questions and simply reiterating her point. Over. And over. And over. Krueger patiently explains that — yes, of course the people have the power to amend or revise the constitution.

I don’t think we’re going to get anything new thrown at the anti-Prop 8 side at this point. The argument is almost two hours old, and we still haven’t gotten to the attorneys supporting Prop 8. Unless the justices are equally scathing against the other side, I don’t see much chance that the court will toss out Prop 8.

I spoke too soon. Here’s something new. What if Prop 8 had passed without the Marriage Cases coming first? Krueger: Same analysis, but longer because first we’d have to argue that same-sex marriage was a fundamental right.

How do we know a fundamental right?, one justice asked. This is amazing to me given the court’s decision in the Marriage Cases. And Justice George makes it worse, diminishing the importance of his own decision in the Marriage Cases, suggesting that all one would have to do is simply “characterize something as a fundamental right” to say that it couldn’t be amended. But it’s not that simple, as the Marriage Cases state. The court certainly can discern what is a fundamental right. [This may be worth a whole separate post.]

Now they’re arguing about whether there’s a difference between inalienable and fundamental rights. And Justice Corrigan says: “Doesn’t your position boil down to the view that this court should throw out any amendment that it doesn’t like?” No. This court has said that the rights of same-sex couples to marry is fundamental and the state has no compelling reason to abridge it.

OK. Finally, the other side. Here comes the Evil Death (Kenneth) Starr. He starts by quoting former Justice Tobriner to the effect of the right of the people to change the constitution. He then sucks up to the justices by lauding their jurisprudence. Werdeger shuts him up, at least for a minute, by asking why this isn’t a revision given the far-reaching implications.

Starr: This would be unprecedented. He admits that this precise issue hasn’t come up because of the suspect classification issue. Goes through simply naming cases. Only a revision if it changes the fundamental structure of government — not if it takes away rights.George: What if there were a specific amendment that deleted the right of free speech? OK to do by amendment?

Starr: Even there, while it is unthinkable, not a limitation on the power of amendment. So this would be OK. Cites Justice Mosk’s concurrence in the death penalty case, in which he said that even though what the people did in restoring the death penalty was “macabre” and “unenlightened” he couldn’t stop it and it was valid as an amendment.

Werdegar:   Could a Romer v. Evans type of amendment have been OK?

Starr: Yes. People are sovereign and can do unwise things, including things “that tug at the equality principle.”

Well, at least he’s clear. This is a very unsympathetic argument. The people can do whatever they want. Any right can be removed by the simple initiative process. It’s only an impermissible revision if it changes the structure of government.

Justice Moreno couldn’t move him off this point.      

Starr goes on about how minor this is. Then he answers Justice Werdegar’s point that this precise issue has never come up, saying that the court has “said it without saying it.” 

Justice Chin comes back to the point about whether the state should get out of the marriage business. It could, says Starr (and might be inclined to do under the equality principle), but it’s not for the court to do. A recommendation is as far as the court should go.

Uh, oh. Here’s another ramble from Justice Kennard. She picks up on the AG’s theory and asks why it shouldn’t be adopted. The theory is too open-ended and hasn’t been used in principled ways. (One case apparently said there was an inalienable right to scalp theater tix.) Would this theory lean too heavily on natural law? Yes, Starr obligingly answered.

Kennard then asked about retroactivity: They’re not void ab initio but they are invalid. Trying to walk a thin line. Chin asks if it’s fair to throw all of this out, when people acted in reliance of what this court said the law was. Corrigan agreed, brushing aside the “swirl of uncertainty” argument that Starr tried to introduce. George: What if age of consent to marriage were raised to 21? Would marriages between 18-to-20 year olds no longer be married? Starr: No they wouldn’t be. But the law has in fact embraced ameliorative doctrines, such as the putative spouse doctrine (don’t ask!).

Corrigan won’t let go: Aren’t these couples entitled, at least as a matter of equity, entitled to rely on the law as we stated it? Starr: They were validly married but isn’t any more. “No longer valid or recognized….”

If I had to guess, I’d say that those married between June and November 4, 2008 will still be married. Going forward, forget it. It’s time to dive back into the political process. I don’t expect a unanimous decision on either issue, but I’d be surprised if either vote is close. (I do think that there’s at least a chance that the retroactivity issue will be unanimous.)

There’s rebuttal, but I will save further remarks for tomorrow’s post. I don’t expect anything revelatory to happen after about two-and-a-half hours.