j.modjeska

The anti-gay marriage amendment passed in California last November is heart-breaking, morally repugnant, and insulting. But it’s less bad than you think, and it is constitutional.

The California Supreme Court, on its website this morning, quietly issued its final opinion on Prop 8 (note: all page numbers cited in this post refer to the linked PDF). Despite the moral injustice that was perpetrated against same-sex couples by the people of California when they passed the initiative last November, the state Supreme Court is not bound to instill reason or wisdom to the land, but to uphold the law and the constitution. Today they did that. The ruling is unfortunate in that it’s another let-down for supporters of marriage equality in California, but an honest review of the entire process leading up to today reveals the Court’s decision as possibly the only thing that wasn’t terribly flawed.

Free and Undivided

It is tragic. The idea that a state government, acting in concert with the will of a majority that was either misled by propaganda or just plain mean, would intentionally take away rights from a minority is unconscionable in modern law and culture. In this country we’ve spent the last 140 years — beginning with the passage of the Fifteenth Amendment — slowly inching our way, legally and socially, away from institutionalized discrimination. Yet today, fresh on the hells of the 41st Memorial Day, a day on which we are impelled by the Army of the Grand Republic’s historic Memorial Day Order to “let no neglect, no ravages of time, testify to the present or to the coming generations that we have forgotten as a people the cost of a free and undivided republic,” the most populous state in our nation has upheld the division between gay and straight, and codified in its constitution the taking of freedom from some of its people.

Warts and All

The real tragedy of Proposition 8 isn’t today’s decision by the Court. If anything, the Court’s 6-1 majority opinion offers a sympathetic voice to the gay rights community and a “don’t mourn, organize” approach for what to do next (more on that presently). The fact is that overturning Prop 8 would undermine California’s entire constitutional process and years of legal precedent (which are painstakingly recounted in the opinion). The fault lies not with the Court, but with two flawed instruments of law: the California voters and the amendment process.

In a system of representative democracy, the people elect representatives to make decisions on their behalf. This process is laden with bribery, corruption, obfuscation, and deception, but does generally speaking have two important advantages: (1) policy-making is done in a somewhat organized and disciplined way, often with explicitly codified checks and balances to protect minority interests; (2) the rule of law is not generally subject to the passing whims of the general public. In contast, direct democracy, which is essentially what California has, subjects virtually any question of policy to a simple majority vote.

Even in deep red Oklahoma, where John McCain won every single county in the 2008 election, an initiative like Prop 8 would face a much more rigorous challenge. That’s because in Oklahoma, like many states, the signature threshold for a ballot initiative is much higher than in California, where a mere 8% of the voting public can place an initiative on the ballot. As the Court points out on page 4 of today’s opinion, this explains why California’s constitution has been amended more than 500 times in only 130 years of statehood (compared to just 27 times for the U.S. Constitution).

The Court further underscores its powerlessness to act against the will of the majority by referencing the broad power that the state’s constitution grants the voters with respect to the scope of changes to the governing document. Specifically, they point out that although some state constitutions allow for revision/amendment by the people, they expressly designate certain sections such as Bills of Rights as being completely off-limits. California’s constitution offers no such safe harbor for any portion of its contents.

Other important legal considerations are carefully addressed by the Court, including the importance of precedent, the protection of the various powers of the branches of government, and the differences between the current position of the California Supreme Court and Supreme Courts of other states recently engaged in legal debates over the constitutionality of pro- or anti-same-sex marriage amendments.

Silver Linings

It won’t come as any consolation to most same-sex couples in California, but today’s decision isn’t without its highlights. The most obvious victory comes in the Court’s unsurprising ruling that any same-sex marriages completed prior to the passage of Prop 8 “remain valid in all respects” (page 135). This is perhaps the most explicit win for equal rights proponents, but some more subtle components of the decision may lay the groundwork for a more meaningful future victory in the state.

Early in the 136-page opinion the Court took pains to clarify its role: “our task,” they said, “… is not to determine whether [Prop 8] is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution.” They went on to explain the Court’s role as an arbiter of constitutional validity, saying that they are “limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values.” (Page 3; all emphasis in original). Then, rather than seeking questionable constitutional grounds for overturning the initiative, which could have upset years of precedent and opened far more dangerous doors, the Court instead did two important things: it strictly upheld precedent and the words of the California constitution, and it stripped the amendment of most of its meaning.

In upholding precedent and not departing from the long history of Supreme Court rulings that reinforce the power and principle of the state’s constitution, the Court strengthened the already well-established doctrine that amendments by the people are beyond judicial reach except in extraordinary circumstances. Their final words in the opinion spelled out the next steps, presumably already under way: “if there is to be a change to the state constitutional rule embodied in [Prop 8], it must ‘find its expression at the ballot box.’” Because the Court upheld a very high bar for overturning voter initiatives via the judicial process, one can assume that if such an “expression at the ballot box” took place it would be afforded the same protection.

Even more important than setting the stage for a successful and lasting amendment to repeal Prop 8, the court defined away virtually all the substance from the constitutional amendment. They said that the amendment reserves “the official designation of the term ‘marriage’ for the union of opposite-sex couples,” (page 7; emphasis in original). In effect, they left only a shell: the word “marriage”. This won’t inspire chants of “free at last,” but it certainly puts Proposition 8 in its place, and makes it clear that it won’t fundamentally change the privileges and immunities under California’s Article 1.

Dissent

Critics, including the lone dissenting voice on the court, Justice Carlos Moreno, liken the Court’s decision to an affirmation of the “separate but equal” doctrine. That would be true but for one important difference: the separate but equal doctrine of early 1900s America protected a system that literally segregated blacks and whites into separate physical locations and provided vastly inferior educational instruction and accomodations for one group. The shaky legal ground that supported separate but equal relied on the flawed assumption that governmental services could be administered separately to two groups of people but somehow still be the same. In contrast, Proposition 8 does not segregate the facilities, government services, rights, or protections afforded to any group by the state. In fact, as detailed above, the Court’s narrow interpretation of the language of Prop 8 effectively requires the court to uphold it because it carries so little weight.

Sanctity

The California Supreme Court today may have done equal rights activists in the state a bigger favor than they realize. Many were looking to the Court as the last bastion of sanity after a vile and bigoted campaign led by mega-churches and right-wing fringe groups succeeded in doing the unthinkable. And though they acted in good faith with their principles, the broad coalition that asked the 7-judge panel for their votes to overturn Prop 8 probably knew that it would take a different kind of vote altogether to make things right. In California, after all, “all political power is inherent in the people” (Article II, Section 1) and those people no doubt have the votes and the determination to make this right in the end, using the legal processes and framework that the constitution spells out and that the Court has pledged to uphold. In the meantime, same-sex couples in California will enjoy all the trappings of marriage, except for the title.

IMAGE CREDIT: the image used at the top is by Diogioscuro, via Flickr.