Something to contemplate on Black Friday

Phil Spector totally looks like a dandelion.

Strauss v. Horton: Law, Politics and Prop 8, part II

As promised, here is part 2 of my analysis of the upcoming review of Proposition 8, Strauss v. Horton. In this post, I will look at some of the political winds that are influencing the court.

The first question that a lot of people ask is why, if the court is inclined to overturn Proposition 8, would they have let the initiative go to a vote? A group of litigants tried to get the Court to hear the revision challenge before the vote took place in a case called Bennett v. Bowen. The court denied their request for hearing, ruling that proposition 8 hadn't passed and so was not yet a live controversy. Judicial action was therefore not yet proper. This is a judicial doctrine known as ripeness. There are very few exceptions that would allow the court to take jurisdiction over a potential dispute; this issue did not fall into any of those exceptions.

But now, the dispute isn't just potential, it is live and the Court can now hear it. While courts are meant to be independent of political pressure, even the most isolated of courts would feel the politics of this decision weighing on them. The court has a lot of institutional pressure to strike down Proposition 8, but would expend a lot of political capital if it strikes the initiative down.

The foundation of the judiciary's power is moral legitimacy. The judiciary has no way of enforcing its own orders; its orders are upheld because the other branches of government and the people in general view the decisions of courts as binding, final, and authoritative. To that end, a court protecting its own legitimacy must take into account the effect that its decisions would have in building and maintaining its moral legitimacy. Specifically, a court must balance the perception of being a final and binding authority on the one hand and not appearing to be an unaccountable dictator on the other. Weighing on the final and binding authority side, the court has an interest in not having its decisions overturned. Many times, judges will even strike down attempts to override past decisions where that particular judge was in the minority. While the judge may disagree with the prior decision, protecting the right of the court to make that decision may prove to be a higher value for the judge than overturning the prior decision. Especially in this case, where the question of whether the court correctly decided that gays and lesbians constitute a suspect class is not before the court, even some justices who were in the minority in the previous case may be tempted to strike down Proposition 8 now that that status is a matter of settled law. As I mentioned in part one, I don't think the Court has left itself a lot of wiggle room in its previous opinion to uphold Prop 8, and if they do uphold it, they look weak and indecisive--not a good position for a court to be in.

On the other hand, to strike down Proposition 8, the court would have to invalidate the will of the majority of California voters. Overturning Proposition 8 will necessarily cost more in terms of public perception than would a statute passed by the legislature or something that had a lower profile. In fact, there is a movement afoot by supporters of Proposition 8 to recall any of the justices who vote to strike down the initiative. Given the propensity for craziness in the California recall system (see, e.g., Gray Davis), this is probably not an idle threat.

So what's a court to do? If the court is inclined to overturn Prop. 8 (I think they are), They need as much cover as possible. When courts make important and unpopular decisions (See Brown v. Board of Education and U.S. v. Nixon), the tendency is to speak with one voice. Look for any opinion overturning Proposition 8 to be a 7-0 or 6-1 opinion. This will necessarily entail coalition building and compromise, so look for a decision to take some time. Finally, it may be that the recall threat will actually backfire--a blatant attempt to coerce a judge to rule one way or another tends to bring out belligerence in the people whose job it is to ensure an independent judiciary.

In sum, I think there are a lot of non-legal factors that can push the court one way or another, and these are important things to consider when predicting how the review of Proposition 8 will turn out. Thoughts?

Zen...

Happy Thanksgiving all...

Strauss v. Horton: Law, Politics and Prop 8, part I

As predicted, the passage of Proposition 8 did not end the question of same-sex marriage in California. The Supreme Court has agreed to hear a challenge of the validity of Proposition 8 in a case that appears to be titled Strauss v. Horton. The three questions that the court certified are as follows:

1. Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?


2. Does Proposition 8 violate the separation of powers doctrine under the California Constitution?


3. If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of marriages of same-sex couples performed before the adoption of Proposition 8?

Partly to satisfy my own curiosity and partly to help others wade through these issues, I have done some research on issues 1 and 2 (I'll leave 3 for another day). I am not an expert on California Constitutional Law, but I know a thing or two about constitutional law in general, so here is my attempt, for what it's worth.

Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?

This seems to be the best argument for overturning Proposition 8. As provided in Section 18, an amendment to the California Constitution can occur by initiative, but a revision to the constitution must start by the legislature approving a a revision commission ballot question. The ballot question must be approved by a general election of the state, then a revision commission writes a new constitution, then the constitution must be supported by a majority at another general election. Absent that process, the California Supreme Court can rule that the subject matter of a proposed amendment would amount to the revision of the California Constitution and so much go through the more rigorous process. An explanation of the difference between an amendment and a revision is written here, a portion of which I have excerpted below:

"Amendment" implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed. The revision/amendment analysis has a dual aspect, requiring us to examine both the quantitative and qualitative effects of the measure on our constitutional scheme. Substantial changes in either respect could amount to a revision. An enactment which is so extensive in its provisions as to change directly the "substantial entirety" of the Constitution by the deletion or alteration of numerous existing provisions may well constitute a revision thereof. However, even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also.

The question is whether Proposition 8 affects the substantial entirety of the California Constitution. Initiatives in the past that have been held to be revisions by the California court include not only initiatives that attempt to change several parts of the constitution at once (McFadden v. Jordan), but also those that would enact a fundamental qualitative change in the structures of the government, such as an initiative to limit the criminal procedure protections of the California Constitution to those that are recognized in the federal constitution (Raven v. Deukmejian).

Prop 8 only touches on one subject and is limited to one existing right of that subject. In that sense it is fairly different than those cases that I mentioned earlier. But I think there is still a fairly good case to be made that Prop 8 constitutes a revision. When viewed through the lens of California Constitutional law, Proposition 8 purports to strip a fundamental right from a suspect class. To affirm Prop 8 as an amendment, the Court would have to either revisit one of these two classifications (which they are unlikely to do) or draw a line that says what fundamental rights can be stripped from suspect classes before it constitutes a fundamental qualitative change in the California Constitution. I just don't think that the opinion in Marriage Cases gives them the wiggle room to say that. Because I think that the court won't write an opinion that says that stripping a fundamental right from a suspect class can be accomplished by a majority vote, I think that this argument is a winner.

Does Proposition 8 violate the separation of powers doctrine under the California Constitution?

The argument, as I understand it, is that Proposition 8 is a legislative attempt to relitigate and overturn a judicial judgment, which is a core judicial function. Words cannot express how bewildering this argument is to me. The only reason that separation of powers would matter is as a means of determining whether prop 8 constitutes a revision. I can only conclude that the court certified this question as a subset of the revision question; that makes more sense given that a change in the allocation of governmental power is per se a revision of the constitution. So I will approach it in that way.

Regardless of the function of this argument, I just don't think it's very good. The check and balance on the judiciary is that if the court interprets a statute in the way that the legislature doesn't like, the legislature passes a new law. If the court interprets the constitution in a certain way and the legislature doesn't like it, they start the process to amend the constitution. It seems like this argument would apply to every new law or amendment. It also can't be said that the court has a special role in protecting minorities. If anything, that role is incidental to the courts' role in interpreting the constitution, not an inherent judicial function. I don't know; maybe I'm missing something. If someone wants to tell me that I'm wrong and this is a good argument, feel free to explain it to me. I'm lost.

OK, I've had my say on the law. Feel free to read some more qualified musings on the subject here, here, here, and here. Stay tuned for part two on Thanksgiving. Fight the tryptophan to read my analysis of the politics that the Court faces in this case and why they may affect the decision as much as the law.

Princeton Sidewalk Protection Act

The Tigers have begun a campaign of love:

"We’re not froshophobes. We just think they should stay on the grass."

It's too bad for this guy...

... that truth is a complete defense to libel.

Why I'm Writing

I'll admit it. I have a conservative streak a mile wide. When I say conservative, I don't mean my politics--I'm fairly progressive--I mean my temperament. So naturally, the thought of going to a protest is beyond distasteful to me (this is meant as no offense to those who did--someone has to do it). I want to provide support for the gay rights movement without having to do things that I neither enjoy doing nor am very good at.

The solution to this problem is to do what I am good at--writing essays that (I hope) provide a reasoned argument in favor of gay rights. I approach my essays as an advocate. I am not going to make any pretense of neutrality. I will, however, give everyone who comments here a fair shake, and attempt to engage all arguments made in good faith.

If you comment here, please be aware of two rules: first, stay on topic. Second, be respectful of me and your fellow commenters. Violation of either of these two rules is grounds for warnings and/or comment deletion. Other than that, I hope you enjoy the blog--feel free to comment or just lurk. Next week I should have a couple of posts dealing with the legal arguments in the California Supreme Court's review of Prop 8. Until then, enjoy the wackiness of this amicus letter urging the court not to review Prop 8. I especially like where the "heiress of the almighty creator" digresses into abortion and the Iraq War...

All about the Mormons, part Deux...

Matt and Trey are at it again.

Welcome

To those of you joining me from Carolyn's blog and Facebook, welcome. My theme for the next few posts will be same-sex marriage and Proposition 8. If you're burned out on this subject, check back in a couple of weeks, when I may have moved on to fresher topics. For now, check back often--I post essays on Tuesdays and Thursdays.

The hard truth