All Law, All the Time

so, i was reading to get a grip on my understanding of this issue and found something which clarified the significance of today's ruling for me (which i must say made me happier in this specific case):

"Importantly, in today's ruling, the court did not take up the basic question of whether there is a fundamental right to same-sex marriage under the state constitution, but rather the more narrow question of whether Proposition 8, which overturned the court's earlier ruling that there was such a right, was a constitutional amendment or a constitutional revision. Amendments are proper subjects for voter initiatives in California. Revisions, which are more fundamental changes, must go though a state constitutional convention. The court found that Prop. 8 was an amendment (and so was proper), rather than a revision. To get there, however, the court narrowly interpreted Proposition 8."

from: http://balkin.blogspot.com/2009/05/quick-take-on-california-same-sex.html

also, your explanation helps. although when i think of the relationship between community rights and their constitutional safeguards, U. S. and India offer two opposing examples. in the indian constitution, community (religious, caste, etc.) rights are safeguarded and that leads to huge problems in making any advances in women's rights for example. in the U. S., the opposite seems to have happened, which sometimes i find good.

i guess what i understand from your explanation is that in California the space for discussion about these needs to be open.

i have to think more about this, clearly.

kairos

Submitted by yogitasharma on May 26, 2009 - 4:15pm.

i think that's what it's called in rhetoric. jim, i disagree with you because i think both legislative processes and "public debates" snatch (and should snatch) the opportune moments. no? so i don't get the point about prudence. tell me what am i missing? perhaps a better understanding of U. S. legislative processes (i can see that).

the counter-majoritarian problem

Submitted by Jim Aune on May 26, 2009 - 5:21pm.

Yogita: here's the problem, as I see it. One can make a perfectly good case that the equal protection clause of the California constitution should invalidate the effort of a democratic majority to beat up on an unpopular majority. But, just because one *can* make a legal argument doesn't mean that one necessarily should. Here's why: the power of courts in the American system is an anomaly in modern democracies (compare legislative supremacy in most of the democratic world). So the problem of prudence comes in when courts decide if an issue is "ripe" enough for a ruling. Sensible judges/justices don't want to close off democratic debate prematurely--something they arguably did with Roe v. Wade (even Justice Ginsburg believes that, as do I). There is always the danger that some sort of populist movement will try to remove the courts' power over fundamental rights (at present it is a right-wing threat, but that has not always been the case--look back to 1938 and FDR's effort at court-packing). So the courts are constrained by the need to preserve themselves but also to dance the fine line between honoring democratic discussion/debate and closing it off in the name of protecting fundamental rights. What I am arguing here is that in the long run, gay rights will be on a firmer foundation in terms of popular legitimacy if they are fought out in the legislatures and Congress. The alternative, I guess, is to say that law=politics by other means, and that so long as "we" reach the right outcome, anything goes. I don't want to go that far, because I do believe in the rule of law, however flawed that principle may be/have been in practice. Lawrence Solum's legal theory lexicon has a useful discussion here. In terms of rhetorical theory, as I was saying earlier, the stakes are pretty high here. When should we use the law to close off public debate? To what extent should we trust popular majorities with minority rights? What is the relationship between "public" rhetoric and the more specialized rhetoric of the law/Constitution? In a larger sense, I don't think the American system would work without the appellate courts. The US is too diverse, has at least 1/3 of the population that is reliably fascist, and has far too many competing interests for simple majoritarian democracy to work, as it does in, say, England or Norway.

tentatively agree

Submitted by Michael Faris on May 26, 2009 - 3:32pm.

I'm tentatively agreeing with you, Jim. I think this would be better played out by legislators and citizens, rather than the courts. As you note below: prudence.

I'm also considering on what grounds the CA Supreme Court could have overturned Prop 8. The argument that the amendment was a revision of the constitution doesn't seem very sound to me (I'd like it to be sound, but it seems like an arbitrary line drawing issue). Of course, I'm no law scholar.

The only other issue I could see Prop 8 being overturned on is AG Jerry Brown's argument in his briefing that marriage is a natural right (pre-existing the law). (I haven't read the briefing, which can be found via the link. I've only read about the briefing.) This, I think, would be a bigger setback. I don't really want a court arguing that marriage is "inherent in human nature."

The Only Other Issue?

Submitted by Adria on May 26, 2009 - 3:57pm.

In a dissenting opinion, Justice Carlos Moreno wrote that the measure "violates the essence of the equal protection clause of the California Constitution and fundamentally alters its scope and meaning."

"The majority's holding is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution," wrote Moreno, the court's only Democratic appointee.

agreed. important

Submitted by Michael Faris on May 26, 2009 - 4:29pm.

I agree that that's important, Adria, and I probably should have mentioned it. I'm just uncertain of how sound it is to claim that the equal protection clause was so fundamentally altered that the constitution was fundamentally altered. I would be happy and joyous if the reasoning was used to overturn Prop 8, don't get me wrong.

... Actually, I wonder if the equal protection clause could be used to overturn marriage — to strip marriage of its privileging of certain types of families over others.

I don't know the legalities, but...

Submitted by Adria on May 26, 2009 - 2:22pm.

Jim, I hear your point, because we talked about this once when we discussed Brown v. Board in a class many moons ago.

But doesn't this upholding have less to do with "leaving it to the legislatures" and more to do with Court legislation (court legislation that many seem to be saying "cannot exist" in matters of state constitutional amendments)?

Chief Justice George said that to be a constitutional revision (as in, the Court COULD have made one), a measure "must make a far-reaching change in the fundamental governmental structure or the foundational power of its branches." He said Prop. 8 leaves the governmental structure intact and preserves the judicial power to protect rights under the Constitution.

Moreno, in dissent, argued that the initiative process must not be used to allow a majority to deny fundamental rights to a historically persecuted minority. The ruling, he said, "is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal-protection clause of the California Constitution."

Sounds to me like they are very much "legislating," and that this had everything to do with the Court's protecting a majority opinion at the cost of broader constitutional rights for minorities. Moreno dissent seems to point this out.

Courts: Upholding the Constitution or Legislating?

Submitted by Adria on May 26, 2009 - 2:29pm.

So a broader problem for me that this whole thing raises: I don't get the difference, especially in light of constitutional interpretation. Isn't today's decision (on prop 8) legislation? You can call it what you want, but they issued a decree on a particular group of people.

As mentioned in the quiz you posted on here not long ago, in Marbury v. Madison (1803) the Supreme Court firmly established its authority to review and invalidate government actions that are incompatible with the Constitution.

The Court (both state AND federal) are TOTALLY part of that process. The Court has used its power to invalidate hundreds of federal, state, and local laws that it found to conflict with the Constitution of the United States (in the 19th century, 125 federal statutes and 1200 state laws and municipal ordinances, to be exact).

I get that this wasn't a regular law, but what else is the Court's check and balances than to check to make sure a state constitutional amendment doesn't abridge rights expressed in the federal constitution?

And regardless, political power is supposed to be in the hands of the people. So yes, I'll be protesting tonight. Not the Court. I'll be protesting the people that are advocating separate but equal treatment of a group of human beings.

"Anti-Federalists and Federalists alike considered rule by majority a troubling conundrum. Thomas Jefferson and James Madison both warn in their letters about the dangers of the tyranny of the legislature and of the executive. Madison wrote: 'It is of great importance in a republic, not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part.'"

Isn't that what "constitutional limits" is about?: "Judicial checks on legislative and executive branches were supposed to expand political and civil rights over time" (but this is not always the case, as in Dred Scott and Plessy v. Ferguson). Hence, we need people in the streets to care, too.

I guess that's what I think about being a good partisan of democracy.

Prudential Argument

Submitted by Jim Aune on May 26, 2009 - 2:51pm.

I really don't disagree, at one level, Adria. I agree with John Hart Ely that appellate courts need to protect the rights of minorities ("representation-reinforcing review," in Democracy and Distrust), but there's another argument to be considered. Remember that one of Philip Bobbitt's modalities/topoi for constitutional interpretation is "prudence" (following Alexander Bickel). Just because an appellate court can find a constitutional justification for a ruling does not mean that it should always rule. Why? Court decisions are final in ways that legislative/democratic deliberations are not. How one thinks about this has profound implications for one's view of legal rhetoric (and rhetoric in general). At what point does one decide to close off public debate on an issue? Support for gay rights has grown dramatically, even since 2004. What's better, in the long run, having gay marriage established through another referendum/decision of the state legislature or through a court that the Right can always accuse of being "activist"? Look at how speechless the Right has been rendered by the recent actions of the Maine and NH legislatures. They can't play the activism card there, and the result is a more secure basis for gay rights--which, after all, both of us want.

Partisians of Democracy

Submitted by Adria on May 26, 2009 - 3:05pm.

Touché, Jim. I'm not saying the Courts should be activists in the sense that I will be an activist this evening. But activists of constitutional guarantees, you bet. What sort of system do we live in which a group of people--the group whose job it is to uphold constitutional protection for EVERY individual (and consequently offer more equality of access, political legitimacy, and economic power)--would deny those protections on the grounds that normative practice MAY not follow 100%, and out of fear of political retribution?

deconstructing myself

Submitted by Jim Aune on May 26, 2009 - 3:02pm.

One problem with my argument above is that perhaps the California initiative/referendum process is inherently flawed when it comes to dealing with fundamental rights. It certainly goes against the Madisonian notion of deliberative filters that I passionately believe in. My argument works better in the case of legislative support of gay marriage.

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