Strauss v. Horton, part V: Odyssey edition

O fly the dreadful sight! expand thy sails,
Ply the strong oar, and catch the nimble gales;
Here Scylla bellows from the dire abodes,
Tremendous pest, abhorr'd by man and gods!
Hideous her voice, and with less terrors roar
The whelps of lions in the midnight hour.
Twelve feet, deform'd and foul, the fiend dispreads;
Six horrid necks she rears, and six terrific heads;
Her jaws grin dreadful with three rows of teeth;
Jaggy they stand, the gaping den of death;
Her parts obscene the raging billows hide;
Her bosom terribly o'erlooks the tide.
When stung with hunger she embroils the flood,
The sea-dog and the dolphin are her food;
She makes the huge leviathan her prey,
And all the monsters of the watery way;
The swiftest racer of the azure plain
Here fills her sails, and spreads her oars in vain;
Fell Scylla rises, in her fury roars,
At once six mouths expands, at once six men devours.

Close by, a rock of less enormous height
Breaks the wild waves, and forms a dangerous strait;
Full on its crown a fig's green branches rise,
And shoot a leafy forest to the skies;
Beneath, Charybdis holds her boisterous reign
'Midst roaring whirlpools, and absorbs the main;
Thrice in her gulfs the boiling seas subside,
Thrice in dire thunders she refunds the tide.
Oh, if thy vessel plough the direful waves,
When seas retreating roar within her caves,
Ye perish all! though he who rules the main
Lends his strong aid, his aid he lends in vain.
Ah, shun the horrid gulf! by Scylla fly.
'Tis better six to lose, than all to die.'

—The Odyssey, Book XII

OK, I've watched the oral argument, and it would appear as though the California Supreme Court's decision will come down to one fundamental question: is there a principled distinction between Proposition 8 and an amendment that would overturn suspect class status? While the media tend to simplify court decision into winners and losers, appellate opinions are about creating doctrine for lower courts to follow. Therefore, the court has to look beyond the parties in this case to the potential implications that the rule they lay down will have on future cases. The court is stuck between Scylla and Charybdis in this case; no solution will be clean or without bad consequences. Either the court overturns the will of the people and sacrifice judicial capital by being (rightly?) perceived as unelected tyrants, or they open the door to stripping equal protection out of the California Constitution altogether. At this point, the court just has to take a long look at what option is the least bad.

I have mentioned previously that protecting suspect classes from discrimination is a fundamental structure of a republican form of government. This differs from fundamental rights analysis because restrictions on fundamental rights, at least in theory, applies to everyone. The inherent protection of someone's self-interest does not apply when the majority can target a minority group for differential treatment. Heightened scrutiny is needed to make sure that minorities are not denied access to the political process. Now, whether you agree that sexual orientation should be a suspect class or not, current California law says that it is. If 50%+1 voters can overturn suspect class status, the thing that is meant to provide extra protections to historically politically disfavored minority groups, then the entire concept of suspect class status is illusory.

This is relevant because while declaring Proposition 8 valid would not strike down suspect class status in and of itself, it would be hard, given the court's analysis in the Marriage Cases to draw a doctrinal distinction between Proposition 8 a proposition that would overturn suspect class status entirely. The court said in the Marriage Cases that sexual orientation is a suspect class and that marriage is a fundamental right. A rule saying that an initiative amendment can remove a fundamental right from a suspect class, but cannot remove suspect class entirely would be protection in form but without substance, and it is difficult to imagine that the court could maintain any honest distinction.

On the other hand, the whole purpose of the structure of the California Constitution is that it was meant to be responsive to the will of the people. The constitution was set up during a time when railroads and other large corporations ruled state politics; the initiative process was meant to counterbalance against corporate and elite control of government. Also, given the countermajoritarian nature of the judiciary, it must tread lightly when overturning legislative acts. This goes doubly for direct initiatives and triply when those initiatives claim to alter the constitution that the court is interpreting. Even if one has a cynical view of the intentions of the court, it must still use its judicial capital wisely to ensure that it retains moral authority, the currency by which its decisions are enforced by the other branches.

So what is the Court to do? I can see only one way out, a way the court alluded to earlier: read Proposition 8 and the equal protection clause together, and declare civil marriage unconstitutional. The court allowed for this in the Marriage Cases by saying that the constitution would be satisfied "by extending to the previously excluded class the treatment or benefit that the statute affords to the included class, or alternatively . . . by withholding the benefit equally from both the previously included class and the excluded class." Proposition 8 says that "only marriage between a man and a woman is valid or recognized in California," but does not mandate that a legal union between a man and woman must be marriage. Therefore, the court could read the case and Prop 8 consistently by declaring that there is no such thing as civil marriage in California. I previously only thought of this solution as a clever way of teaching people a lesson about careful drafting, but I think in this case it is a viable solution. The court allows the amendment to stand by interpreting it as removing a possible remedy rather than as discriminating against a suspect class. The Court avoids overturning the amendment while simultaneously avoiding setting a precedent that would destroy equal protection jurisprudence. No one will really be happy at the outcome, but it might be the least bad solution.