State Supreme Court Hears Proposition 8 Cases

Justice Skeptical of Their Power to Overturn Voters’ Constitutional Amendment

commentary by MARK GABRISH CONLAN

Copyright © 2009 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

The long-awaited oral arguments in the cases seeking to invalidate Proposition 8 took place before the California Supreme Court on the morning of Thursday, March 5 — and were a sobering wake-up call for the Queer community and supporters of marriage equality for same-sex couples. Throughout the hearing, the Supreme Court justices appeared reluctant to go out on a limb and declare that Proposition 8, which amended the California state constitution to provide that only marriages between one man and one woman would be “valid and recognized” in California, could somehow be construed to violate the very constitution it amended. However, the justices also seemed skeptical of the demand by Proposition 8’s supporters that they read it retroactively and invalidate the estimated 18,000 marriages of same-sex couples performed between June 15, when the court’s previous decision striking down the state’s ban on same-sex marriage took effect, and November 4, when California voters approved Proposition 8 by a five percentage-point margin.

The arguments took three hours and 10 minutes, slightly longer than scheduled. Only one attorney — Kenneth Starr, former U.S. solicitor general and special prosecutor of former President Bill Clinton — spoke in favor of upholding Proposition 8. But the arguments against it were divided among five separate lawyers — Shannon Minter of the National Center for Lesbian Rights; Raymond C. Marshall, representing a coalition of civil rights organizations; Michael Maroko, representing Robin Tyler, veteran Los Angeles-based Lesbian entertainer and activist; Theresa Stewart, representing the city of San Francisco; and Christopher E. Krueger, representing the office of California Attorney General (and former Governor) Jerry Brown, who at first had pledged to defend Proposition 8 in court but then switched sides and came out against it. (Ironically, it was Brown, as governor, who signed into law California’s first explicit ban on same-sex marriage, a legislative bill amending the California Family Code to define marriage as between one man and one woman, in 1977 — and when he ran for attorney general, the predominantly Queer San Diego Democratic Club endorsed his primary opponent largely on that basis.)

It didn’t help that the anti-Proposition 8 attorneys came off as surprisingly lame. Only Theresa Stewart seemed intellectually coherent, capable and in touch with the full implications of her arguments. She was also the only one who seemed adept at the kind of thinking-on-one’s-feet needed to argue an appeal in front of a panel of justices peppering the advocates with questions and frequently putting them off balance to try to get to the root issues of a case. Michael Maroko seemed so out of it that on several occasions he identified “heterosexuals” as the group Proposition 8 discriminated against — and both the justices and the other attorneys were polite enough not to call him on his mistake.

The attorneys opposing Proposition 8 were also hamstrung by their inability to agree on a common ground on which to urge the court to throw out the initiative. Minter, Marshall, Maroko and Stewart all came prepared to argue that Proposition 8 constituted a “revision” of the state constitution rather than a simple “amendment,” and therefore should have been required to go through a more elaborate process — approval by a two-thirds vote of each house of the state legislature and then a vote of the people — than it did. Kreuger, reflecting Brown’s position, conceded that Proposition 8 was an “amendment” rather than a “revision” but said the court should throw it out anyway because it infringed on the “inalienable rights” of a “suspect class” as defined in Article I, section 1 of the state constitution.

The court’s debate — and in the hearing the justices did a lot more talking than the attorneys did — largely centered around the meaning of the word “revision” and whether a change in the state constitution that did not affect the balance of powers between different branches of the government could still be held to be a “revision” requiring legislative approval before voters could weigh in on it. Many of the justices pointed out that the only two times the court has previously thrown out an initiative on the basis of “revision” were in 1948, when an initiative attempted a thorough rewrite of the constitution that added half again as many words to it; and 1990, when it threw out a requirement in an initiative that the court could not interpret the state’s constitution and laws to grant more due-process rights to criminal defendants than the U.S. Supreme Court gave them under the federal Constitution.

The basic problem with the arguments against Proposition 8 was they were legal equivalents to the so-called “‘Hail Mary’ pass,” in which a losing team in a football game tries to win in the last few seconds by throwing a long pass and hoping there’s a team member in its vicinity who can catch it and score a touchdown. The inability of the anti-8 lawyers to find any case in California history in which the Supreme Court had thrown out an initiative on “revision” grounds that did not involve a structural change in state government didn’t help their cause. Neither did the absurdity of the whole idea that an amendment to the state constitution could be found to be in violation of the state constitution. Logically, the supporters of Proposition 8 had by far the better case: “We didn’t like it when you, the justices of the California Supreme Court, interpreted the state constitution to require the legal recognition of same-sex marriages. So we used our rights as California citizens and voters to put an initiative on the ballot to change the state constitution and reverse you.”

Part of the problem — as chief justice Ronald George said during the arguments — is that it may be too easy to change the California state constitution. Other states either don’t allow initiatives at all, or don’t allow their constitutions to be amended by initiatives, or require either legislative approval or a constitutional convention to approve a proposed amendment before the people can vote on it. (That’s how same-sex marriage survived in Massachusetts and Connecticut; their constitutions’ elaborate amendment mechanisms deprived those states’ voters of the opportunity to do what California’s voters did when they passed Proposition 8.) This suggests the grim irony that one of the results of the legal attack on Proposition 8 may be a change in the state constitution to make it more difficult to amend — which would make it harder for the Queer community and its allies to reverse Proposition 8 than it was for its supporters to enact it in the first place.

The Brown argument that Proposition 8 somehow runs afoul of “inalienable rights” guaranteed by the constitution, that can’t be taken away by simple majority vote — and Stewart’s related argument that the people, by adopting the state constitution and putting in it an expansive set of legal rights (including some, like the right to privacy, that aren’t explicitly granted by the U.S. Constitution), restricted their subsequent ability to change the constitution to take away those rights — ran into the problem that the California state constitution doesn’t at any point designate certain parts of itself as “inalienable” or “special” and therefore unamendable by a simple initiative. Both Stewart and Kreuger tried to read the guarantee of rights in Article I, section 1 — “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy” — as unamendable, but not only does the constitution itself not specify that, new rights have been added to that clause by simple amendment, notably the addition of a right to privacy in the 1970’s.

Indeed, one of the things that most seemed to trouble the justices in the Proposition 8 case was that the anti-8 attorneys seemed to be arguing that you can add constitutional rights, either for the general population or to protect specific minorities, by simple amendment, but it takes a revision to subtract rights. The justices argued that on several occasions voters have passed initiatives that stripped away rights — when they voted to reinstate the death penalty after the California Supreme Court had declared it unconstitutional; when they eliminated busing as a remedy for racial discrimination in schools; and when they prevented government from using affirmative-action programs in hiring and university admissions — and their court has upheld their right to do so. Stewart made a good attempt to argue that the busing and affirmative action initiatives merely took away specified remedies against discrimination, and others pointed out that the death penalty initiative didn’t abolish judicial review of specific death-penalty cases and therefore still left the courts a role in the process.

The blunt fact, however, is that as currently written the California state constitution sets virtually no limits on the people’s power to amend it. When former San Diego City Councilmember Toni Atkins said in a marriage equality rally the day before the Supreme Court hearing, “Proposition 8 stands for the idea that if enough people agreed, we could establish an official state religion, take away women’s right to vote or even re-establish slavery,” what she didn’t seem to realize is that the California constitution could indeed be amended to accomplish any of those things, and the only thing stopping that is the specific prohibitions in the U.S. Constitution against them. Likewise, there would be nothing to stop the voters of California from re-enacting the prohibition against interracial marriages the state supreme court invalidated in 1949 if the U.S. Supreme Court hadn’t ruled in 1967 that such laws violate the federal Constitution.

The case against Proposition 8 was based on a kind of wishful thinking all too common in the modern American Left: the idea that because something is unjust, therefore it must be unconstitutional. In the last 30 years the American Right has consistently out-organized (as well as vastly out-spent) the American Left in building public support for its positions. What’s more, the Right has realized the necessity of building majority support and using the political process to achieve its goals, while the Left on issue after issue, from reproductive choice to criminal due process to same-sex rights in general and marriage equality in particular, has ducked the hard work of political organizing and sought to use the courts as a short-cut, a way to force progressive social ideals on an American public largely unwilling to accept them.

The African-American community didn’t make this mistake. There’s a reason why the most intense period of civil-rights activism by and for African-Americans took place from 1955 to 1965, the decade immediately following the U.S. Supreme Court’s decision in Brown v. Board of Education that racial segregation was unconstitutional. African-American leaders realized that the court’s decision wasn’t a guarantee of rights, but a sort of hunting license for civil rights and a challenge to their community to do the hard political, social and street activism needed to turn those promised rights into reality. By contrast, the feminist movement largely walked away from the issue of reproductive choice after Roe v. Wade was decided in 1973, giving opponents the chance to organize and build support for renewing abortion bans — and the pro-choice side has been playing catch-up ever since.

Most progressives living in the U.S. today have never experienced a period like the 1930’s, when the political branches of government were dominated by progressives and the courts were reactionary forces. Through much of Franklin Roosevelt’s tenure as president, he was bedeviled by a U.S. Supreme Court using what would now be called “judicial activism” to invalidate law after law that Roosevelt and his party’s Congressional majority had hoped would help revive the economy. Indeed, Roosevelt got so frustrated by the Supreme Court’s interference with his agenda that he mounted an ill-fated campaign to expand its membership so he could “pack” it with more progressive judges. With most sitting federal judges having been appointed by Republican Presidents and vetted, not by neutral groups like the American Bar Association, but by ideologically Right organizations like the Federalist Society, President Obama may face similar opposition from Right-wing “activist judges” ruling large parts of his agenda unconstitutional.

There are a few silver linings in the dark clouds surrounding Proposition 8 and the court cases about it. The California Supreme Court justices seemed disinclined to rule that the estimated 18,000 same-sex marriages performed between June 15 and November 4 were invalidated by the initiative, and in particular they saw the preposterousness of Kenneth Starr’s argument that the marriages would remain on the books but not be “valid” or “recognized” for any legal rights or responsibilities. Starr’s position would essentially have told those couples (including my husband and I) that our marriages would no longer be recognized in California but would become valid again if we moved to Massachusetts, Connecticut, Canada, the Netherlands or Spain.

The case also put on the table a proposal from an unlikely source — conservative Pepperdine University law professor and Proposition 8 supporter Douglas Kmiec — that the state get out of the marriage business altogether and offer “civil unions” equally to opposite-sex and same-sex couples, while reserving the term “marriage” to religious organizations, thereby at least in theory reconciling the Queer community’s demand for legal equality and the Proposition 8 supporters’ desire to preserve the traditional religious association of the term “marriage” with opposite-sex unions only. No doubt the people who sponsored Proposition 8 would denounce this as an end run around their initiative’s intent — just as they claimed in court that California’s domestic partnership law (which they now cite approvingly as making same-sex marriage unnecessary) violated the spirit of Proposition 8’s predecessor, Proposition 22 — and in a way they’d be right, but it does suggest a possible point of compromise on this divisive issue.

But the best thing the upholding of Proposition 8 — if the California Supreme Court indeed so rules — could do for progressives is cure us once and for all of the idea that appealing to the courts is a substitute for broad-based political organizing aimed at winning majority support for our rights. As much as we like to talk about minority protections and civil rights, the fact is that the essence of democracy is the rule of the majority, and for the most part majorities in a democracy get what they want. From the start, the Queer community and its allies have almost totally lost the battle for public opinion on the same-sex marriage issue. Every U.S. jurisdiction whose people have had a chance to vote on this issue has voted against us, usually by overwhelming margins. If we’re ever going to have marriage equality, we’re going to have to start fighting for it among the people, with creativity and determination, and not expect the courts to make us a present of rights we haven’t persuaded a majority of our fellow citizens that we deserve.