Undoing democracy?
posted by Kaimipono D. Wenger
With a 52-48 edge at last count and over 96% of ballots in, it looks like Prop 8 is going to pass, ending same-sex marriage in California.
One friend asked, is there a way to fight this? I really don’t think there is, though legal fights are definitely happening. According to multiple news reports, the ACLU has filed a writ seeking to have the proposition invalidated, based on the revision/amendment arguments that were made a few months back. (That is, that big changes like this, which affect fundamental rights, need more than a simple initiative.)
In addition, news outlets are reporting that Gloria Allred will be filing a lawsuit making controversial legal claims (the exact nature of which is not explained); that No on 8 has claimed that a large number of ballots remain uncounted; and that the San Francisco city attorney will file a suit to block the proposition. Gavin Newsom will speak to reporters about it soon.
Are there good legal arguments for disregarding or undoing Prop 8? I don’t know that there are.
One line of argument I’ve heard is that the proposition goes too far for an initiative. It makes big enough changes in the constitution — affecting a fundamental right of a protected class — that it would require more. But that very argument failed just a few months ago.
Another suggestion from a friend is that the proposition fails because it is inconsistent with other constitutional provisions. That seems to misunderstand the function of constitutional amendments. Where these are inconsistent with other provisions, they are typically intended to overrule those provisions. (I.e., the 13th amendment and the slavery provisions; or the Prohibition amendments.) As a matter of basic interpretation, I think that the reading one would give it is that to the extent that the Equal Protection clause required marriage to be extended to same-sex couples (Marriage Cases), that interpretation is now overruled.
And finally, the DailyKos speculation that the amendment may itself be unconstitutional is, I think, just crazy talk. The constitution cannot, by definition, be unconstitutional, can it? (Of course, it could be struck down if it was found to violate the U.S. constitution. I’m not holding my breath on that one — I don’t think there’s any chance that the Roberts court would rule that way.)
On the bright side, marriage and gay-rights advocates still have much to cheer. I don’t think that the proposition overrules the other holdings of the Marriage Cases — specifically and importantly, that sexual orientation is a protected class. Also, it’s unclear whether the proposition undoes marriages that were validly entered into during the last several months, and I think the stronger argument is probably that it does _not_ undo those marriages. (The Cal Attorney General agrees, though this probably won’t stop the lawsuits.)
Also on the bright side for same-sex marriage advocates was the drastic decrease in public support for the limitation. In the past ten years, support for this kind of ban has dropped precipitously, from 61% (Prop 22) to a bare majority of 52% (Prop 8). If that trend continues, advocates won’t need to go to court. They can simply bring their own proposition ten years from now, and watch it pass with flying colors.
UPDATE:
This release at Lambda describes the legal argument. Significantly, they point to an earlier 1990 initiative which _was_ found unconstitutional. So maybe it’s not crazy talk to suggest that the amendment could be itself ruled unconstitutional. Still, it seems like a stretch.
November 5, 2008 at 4:17 pm
Posted in: Politics
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Responses (14)
Jill Asher - November 5, 2008 at 5:09 pm
Thank you for putting up this post….We were out holding NO on 8 signs all day (yesterday) afternoon. We even took video which you can see here: http://tinyurl.com/6o9xbh
I am so saddened that Yes on 8 won…. we still have a far way to go….
Tom - November 5, 2008 at 5:23 pm
@Kaimipono
“Also on the bright side for same-sex marriage advocates was the drastic decrease in public support for the limitation.”
I propose another theory: that frustration with the Bush administration and the economy got more liberals out to vote (especially younger voters). How much these younger voters affect the balance in the future is yet to be seen… there is a trend towards conservatism as people enter later stages of life.
It will be interesting to see what the 9th Circuit Court of Appeals does in this case. I think the argument that a constitutional ammendment could be unconstitutional is ridiculous and leads to a plethora of circular reasoning (you have to lift the slavery provisions if this reasoning holds). The only route I see is the Supreme Court. Of course, being a states-rights guy and not seeing homosexuality as a civil right, I don’t think the Supreme Court should get involved (… for all of you who may flame me for that last comment, we do regulate all sorts of sexual behavior and we legislate morality all the time… ethics and morality are the foundation of any legal system).
Justin - November 5, 2008 at 5:28 pm
The ACLU’s revision/amendment argument was probably dismissed in July simply because the measure hadn’t passed yet. The merits haven’t been decided, and the argument seems fairly convincing on my reading of the cases, especially considering that the Cal. S. Ct. is already sympathetic to marriage equality. The petition filed this morning is at http://www.nclrights.org/site/DocServer/CampaignPetition.pdf?docID=4321 (sorry no html)
Reality Check - November 5, 2008 at 6:13 pm
A thought: Prop 8 bans gay marriage going forward. But the Marriage Cases are still good law. Therefore, we know that (1) gays can’t marry and (2) gays are entitled to equal protection strict scrutiny. Doesn’t it follow that given the inability of gays to marry, it would violate state equal protection for straight couples to marry now? In short, California cannot issue or recognize any marriages going forward. That gives everyone equality, and that insures that the voters wishes in prop 8 are honored.
Why isn’t this the right analysis?
Quidpro - November 5, 2008 at 7:36 pm
Reality Check:
Proposition 8 specifically adds language to the CA Constitution that reads: “Only marriage between a man and a woman is valid or recognized in California”. As Professor Wenger eloquently states, such an explicit provision of the Constitution cannot be considered unconstitutional. That’s one reason.
Second, Proposition 8 does not prevent homosexuals from entering into marriage. It limits their partners, as it does those of heterosexuals, to members of the opposite sex. Since homosexuals are treated equally, there is no Equal Protectio violation.
Tom - November 5, 2008 at 7:57 pm
@Quidpro
Well said.
@Reality Check
I think it all boils down to your concept fairness. One’s concept of fairness is intimately tied to their concept of morality. Immoral behavior (by it’s very definition) has a negative effect on society. Now, there are varying degrees of immoral behavior that have varing degrees of consequences. Murder is obviously an extreme case and has a whole legal infrastructure to deal with it. Speaking profanity in front of children isn’t (always) prohibited by law (though there are usually social consequences). In short, we make laws to limit immoral behavior that we deem severe enough to society. In this case, discrimination is not bad… it is good to discriminate against “bad behavior” (another example of good discimination is employeers discriminating against unqualified job applicants… I don’t want unqualified pilots flying my planes
).
Now back to Prop 8: If you don’t think homosexuality is immoral OR is immoral but not severe enough to warrent a law prohibiting it, then Prop 8 is unfair to you. If you DO think it is immoral, than Prop 8 is NOT unfair… it is discriminating against harmful actions to society… AND those harmful actions deserve no protection under the equal protection act.
This argument is more philosophical than legal, but I wanted to just cut-to-the-chase. Of course, this all boils down to what defines your morality…
Stu - November 5, 2008 at 9:07 pm
“Proposition 8 does not prevent homosexuals from entering into marriage. It limits their partners, as it does those of heterosexuals, to members of the opposite sex. Since homosexuals are treated equally, there is no Equal Protectio violation.”
If formal equality = no EP violation, then I guess the Loving court must have gotten it wrong.
Jennifer Hendricks - November 5, 2008 at 10:16 pm
Apparently California has some kind of distinction between amendments and revisions, so maybe there is an argument there. Setting that aside, though, I agree with your point that an amendment can’t be unconstitutional if it complies with the constitution’s rules for amendments.
As an interesting historical fact, however, the 19th Amendment was challenged in federal court on the grounds that it was unconstitutional. The argument was that it worked such a fundamental change in the nature of the polity that it un-did the original deal. The federal court dismissed the case with a surprisingly weak rationale that failed to engage the argument. The court said that the 14th Amendment had also worked such a change, and everybody seemed to agree that it was valid–so there.
Jason Mazzone - November 5, 2008 at 11:08 pm
I once wrote an article [here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=803864 on how constitutional amendments could be found unconstitutional even though they comply with the procedural requirements for amending a constitution. My focus was the U.S. Constitution. Aside from the equal representation of the states in the Senate provision, Article V of the U.S. Constitution includes no specific substantive limitations on how the Constitution can be amended. But, I argued, that can’t mean that anything at all can be accomplished as an amendment just by following the procedures of Article V. Prof. Wenger mentions the 13th Amendment as invalidating pro-slavery provisions of the 1789 Constitution. Let’s say, then, that an amendment to repeal the 13th Amendment gets the necessary support in Congress and is ratified by a sufficient number of states to comply with Article V. Could that amendment really be a valid part of the U.S. Constitution–so that nothing in the Constitution would prevent states from designating some sub-set of the population as enslaved? It seems to me that a change of that magnitude would work such violence to the Constitution (gutting the EP Clause, the DP clause, and so on) that we would be hard pressed to say that we had “amended” the pre-existing document. Whether the CA amendment is like the repeal of the 13th Amendment or, instead, is in basic harmony with the pre-existing state constitution, is another issue. But it is at least one that bears attention.
Kaimi - November 6, 2008 at 12:13 am
Jason,
That’s an interesting argument, I should read your article. I haven’t read it, but from your abstract, I have a general question.
You’re conceding that the Civil War amendments themselves were a massive change to the document, weren’t they. And you’re adopting Ackermanian language, which makes sense since basically the entire idea of Ackerman’s moments is that the document was fundamentally changed, more than once.
But If you can have an Ackermanian moment — a fundamental rethinking of the document — through the mechanics of the amendment process, then why not have a similar shake-up through the same process? Is it just the lack of higher lawmaking that distinguishes one from the other?
(And if so, the obvious follow up question — how the heck do we tell what higher lawmaking is?)
Jason Mazzone - November 6, 2008 at 10:13 am
The argument is that the Reconstruction amendments, even if they complied with the formal requirements of Article V (Ackerman disputes that), were not merely Article V amendments to the pre-existing Constitution. Rather, they radically transformed the 1789 Constitution, ushering in a Second Republic. To do that, more was needed, and occurred, than simply proposing and ratifying changes in accordance with Article V. I don’t think the issue is so much telling whether higher lawmaking in the Ackermanian sense has occurred, but rather ascertaining whether, in the absence of higher lawmaking, changes adopted through the amendment procedures exceed, substantively, the scope of what the existing Constitution permits. Let’s say, for example, that the 28th Amendment is adopted: “Nothing in this Constitution shall be construed to prevent states from passing laws requiring women who bear a child to stay at home and care for the child until the child reaches the age of five.” We’d ask: is this compatible with principles of equality expressed in the Equal Protection Clause, the Due Process Clause, the Nineteenth Amendment, and so on? I imagine there are arguments on both sides. My effort is directed at getting us (the us might be people considering whether to vote in favor of a proposed amendment in the first place) to think about the compatibility of changes with the pre-existing document–even though I recognize, of course, that the answers might not be easy.
Reality Check - November 6, 2008 at 2:25 pm
No, seriously, Quidpro, Tom, others, I really don’t see how the law allows anyone to be married now. It would violate the Marriage Cases, which are still good law, to allow different sex couples to marry when same sex couples cannot. Doesn’t the Court have an obligation to enjoin the state from issuing marriage licenses while marriage is only the union of a man and a woman?
Quidpro - November 6, 2008 at 8:48 pm
Reality Check:
In all seriousness, you appear to be making this more complex than necessary.
Proposition 8 defines marriage in California. A union consisting of a man and a woman fits the definition. A union of two men does not. To argue otherwise is equivlant to arguing for a square circle. It simply does not fit the definition.
Stu raises the Loving case but that does not apply unless the US Supreme Court were to rule that Prop. 8, violates the US Constitution. This is possible, but doubtful.
All proponents of Prop. 8 should take the example of McCain’s supporters. Get over it. The people have spoken. That is the way democracy works.
A.J. Sutter - November 6, 2008 at 9:00 pm
I voted against Prop 8. But I’d like to take issue with the premise of your title, “Undoing Democracy”. The narrative could be re-framed as a triumph of democracy. You omit to mention Prop. 22, which was approved by California voters in 2000 and which purported to ban gay marriage. This is what was struck down as unconstitutional by the Cal Supreme Court earlier this year. That the voters approved Prop. 8 could be seen as a victory, both for the checks and balances embodied in the state constitutional system, including the court system and judicial review of referenda, and for the state population as a whole, notwithstanding that you and I personally might disagree with the majority.
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