California’s Supreme Court ruled today on the matter of Prop 8. Proposition 8 was the anti-marriage provision that amended the California state constitution to include a clause stating that “Only marriage between a man and a woman is valid or recognized in California.” It passed in November after the court had ruled last spring that marriage was a fundamental right that must be afforded to gay and lesbian couples under the state’s equal protection clause. Today, the California court held that Prop 8 was valid, while also holding that the marriages that occurred between June and November remain valid. However one may feel about equality before marriage law for gay and lesbian couples, this ruling sets a very bad and very dangerous precedent.
Arguments in the Case
Part of the case to overturn the proposition hinged on an argument that, because the court had ruled that marriage constituted a fundamental right, the proposition was not an amendment, but a deeper change and thus a “revision.” California allows amendments to be passed through its proposition process, but not “revisions” which must be passed through the legislature. This seemed a tenuous argument, and its perhaps of little surprise that the court didn’t buy it. It really was more of an argument on a technicality of the law (important thought they might be), rather than one that dug deep into the substance of the matter. And, indeed, according to reporting on the ruling, the court stuck primarily to the question of the process of amending their state’s constitution when they ruled. I think it was a strategic mistake to make this the main argument on behalf of the plaintiffs.
The Attorney General for California had argued that the proposition was improper and inherently unconstitutional because it revokes fundamental rights without compelling government interest. News reports indicated that the Senior Assistant Deputy Attorney General (what a title!) who was presenting the Attorney General’s case at oral arguments was peppered with questions and pressed to bring greater clarity to the argument. Never-the-less, this is, I think, an important argument and I will say more about it below.
Those seeking to defend Proposition 8 were chiefly represented by Kenneth Starr of Bill Clinton special prosecutor fame. He argued that constitutional “revisions” were necessary only when basic government structure was involved, and to make altering or limiting individual rights a matter of “revision” would be “an unprecedented revolution.” He was quoted as saying “Rights are important, but they don’t go to structure.” Starr also argued that the people, being sovereign, can do “even very unwise things that tug at the equality principle,” but that, ultimately, rights are defined by the people. This sets the stage for why this ruling is so very wrong and so very dangerous.
Our Deep Structures
The people in our political system are sovereign, and it is true that rights get defined by the people. To a point. Whether it be our federal constitution, or the constitutions of any of our states, among the fundamental organizing principles are balances and limits to government power. Constitutions define the structure, including the powers and limits, of our government. They are not documents that give rise to an entity apart from an unfettered people which rules over them, but self-imposed structures and limits on how the people govern themselves. Matters of individual rights and equal protection of the laws are not addenda to the primary purpose of defining government structure. They are not simply an important but still lesser part of our constitutions. Indeed, incorporating them into the constitution makes them part and parcel of our governance structures.
Furthermore, the protection of rights has been a basic purpose of our government since its founding. The Declaration of Independence states that governments are instituted in order to secure our unalienable rights. The Preamble to the United States Constitution includes amongst its purposes to “secure the Blessings of Liberty to ourselves and our Posterity.” While the Prop 8 cases (purposefully) didn’t raise federal questions, we still have here the basic prism through which all such questions must be seen in our country at large.
What the California ruling does, is it places any fundamental right potentially on the sacrificial altar of popular opinion and whim. It fails to guard equal protection of the laws and inalienable rights from a majoritarian tyranny. Yet, this is precisely the propose of including provisions protecting these principles in our constitutions. They are designed to remove such matters from the fickle winds of politics, and to protect each and every one of us, especially those in a minority of any sort, from having our equality and rights trampled upon simply because it is the will of the majority. It was no other fear than that of a tyranny of a majority over the rights of a minority that lead to the insistence that a Bill of Rights be presented in the first Congress in order for the U.S. Constitution to be ratified. The argument that the limits already in place in the constitution would prevent that from happening was not enough, and so the Bill of Rights was proposed and ratified. The importance of this goes beyond the particular text of those ten amendments or just our federal government, but permeates our whole political structure. And, yet, today’s California Supreme Court ruling goes completely against this grain.
From news reports of the oral arguments in early March, it appears that those arguing the case before the court failed to usher the justices beyond the particular and peculiar tasks of doing their jobs to a place where they could see this in broader scope. It seems that they got lost between the thicket of details and the simplistic ideas of elementary school civics lessons in which democracy simply (and only?) means majority rule.
The California court’s acceptance of Prop 8 and rejection of this core principle of our political structure in favor of simple majoritarian rule over the fundamental rights leaves open for that state, and perhaps the rest of the country, a road we would hardly wish to fathom. What would there be to stop a voter approved provision that bars Mormons from voting, or denies non-citizens legal representation in court, or prohibits women from practicing certain professions? At least in this ruling’s broad outlines, nothing (unless action could be brought under the federal constitution and law). And while it is extremely unlikely that proposals of this sort would find their way onto ballots, much less pass on election day, today’s ruling leaves California law open to little choice but to accepting them.
But I don’t live in California. What does this matter to me? Remember that California is an eighth of our entire population. What that state does has some significance. And while law and precedents certainly very by jurisdiction, thought knows no boundaries. While the issue of “revisions” and “amendments” is unique to California, the issue of majorities and individual rights is hardly unique. Whether its a challenge in another state to one of the many onerous anti-marriage amendments that exist around the country, or some other provision that purports to limit or remove a right, this legal framework can serve as a model. The Supreme Court of California has done California, her citizens, our country and our legal system and all of us a disservice.