The California Supreme Court's decision to hear argument as an "original" matter in three of the lawsuits challenging the adoption of Proposition 8 means the issue of gay marriage will soon be back in the courts.
With one justice voting not to hear the cases challenging Prop 8 at all and one voting to stay its enforcement (and thus allow gay marriage to continue) pending a court decision, tea leaf readers are left with few clues as to what the majority will do once the case is heard.
There are ultimately two issues presented, although they are not always easy to separate. The first, and the obvious one, is whether it is fair to distinguish as a matter of civil law between the committed relationships of heterosexual and homosexual couples.
Under California's domestic partnership law, it is possible for gay couples to secure most, if not all, of the benefits of marriage without actually being married. They can have commitment ceremonies, wear rings, and make critical legal and medical decisions for each other. But few principles are more well-established in American law at this point than that separate but equal is inherently unequal — particularly when the separation is borne of prejudice and misunderstanding, if not outright bias and hatred as this one so clearly is.
I'm fine with boys schools and girls schools, and sports teams separated by sex, and separate dorms for boys and girls. But no similar rationale exists in support of denying gays the right to marry.
I know, two men can't procreate, at least not in the same way a man and a woman can. But marriage is not limited to those of childbearing age, nor would anyone ever suggest that it should be, rendering the procreation argument little more than a fig leaf for a limitation that has its basis in religion, stereotype and bias.
The second issue is one of process.
We lawyers are very big on process. The California Supreme Court has already decided the fairness issue, at least in the first instance, by its holding that the state constitution's guarantee of equality prohibits discrimination on the basis of sexual orientation in civil marriage.
The process issue now presented to the court is whether the voters of California have a right to disagree with them and amend the constitution by a majority vote, or whether doing so is such a fundamental revision of our constitutional plan that it must be considered as a "revision" to the constitution, which requires a two-thirds vote of the legislature in the first instance, followed by approval either by the voters or by a Constitutional Convention.
Constitutional amendments are almost easy in California: Gather (or pay someone to gather) enough signatures to put an initiative on a ballot, and then secure approval by a bare majority. Raising taxes is much, much harder.
In many ways, it's a lot easier to argue about who should decide than it is to argue about what the right decision is. Expect conservatives, at least the smart ones, to try to turn the Prop 8 issue into a question of democracy, and to present the challenge to it not as an attack on bias and prejudice, but as an effort to limit and curtail the initiative process.
Being pro-democracy sounds a lot better than being anti-gay. If you don't like Prop 8, the smart ones will say, then press for an initiative to reverse it, not a court decision stripping the people of their right to self-government, in the guise of a broad construction of what counts as a "revision."
As arguments go, upholding the power of the people to engage in democracy (even where the democratic answer reeks of bias) is a lot more appealing than arguing that sexual orientation is a legitimate factor for the state to take into account in making rules governing legal relationships. And to be honest, it would certainly be nice if the courts weren't needed to guarantee equality — if the majority just provided it on its own.
Would I rather this issue were decided by the people? Sure, if they reached the fair result. It would also be nice, from my perspective, if abortion rights were guaranteed by law so that we didn't have to spend our professional lifetimes, literally, arguing the same case we've been arguing for the last 30 years.
Ultimately, the process argument, far from saving Prop 8, underscores why it is so important for the Court to stick out its neck yet again in defense of equality. Courts are anti-majoritarian institutions. They exist not to promote democracy but to impose limits on it; not to ensure that the majority has its way, but to protect minorities against the tyranny of the majority.
What makes Prop 8 a revision is not that the constitution, prior to its passage or to the Court's earlier decision, enshrined marriage in such a way that any change in its terms must be viewed as a change in the fundamental plan of government. In fact, it never mentioned marriage at all.
It's a revision because the anti-majoritarian role of the courts in protecting minority rights is itself fundamental. And allowing a majority to eliminate that power — especially as it regards a minority that is still struggling for acceptance, as gays and lesbians are — is as direct an affront on the role of courts as the initiative some years ago that sought to limit state judicial power to protect the rights of criminal defendants.
That initiative was thrown out, as this one should be.
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