This is a busy day for legal topics I’m interested in: the U.S. Supreme Court and gay rights law. Within the course of several hours we had the Sotomayor nomination and the California Supreme Court’s decision on Prop 8.
First, Sotomayor. She seems like a decent enough pick for the Court, but beyond her life story and the Jeff Rosen hack job on her, I don’t know much about her. I was hoping for a fierce liberal advocate to counter Scalia — I would have loved to see Obama pick Pam Karlan. Will Sotomayor be that fierce liberal advocate? Maybe, maybe not; I don’t know. You can read summaries of her past appellate rulings here. At any rate, it’s sure to be an interesting confirmation process.
As for the Prop 8 decision: no real surprise. The court upheld Prop 8 but kept the existing same-sex marriages intact. This is an incredibly long opinion — the main opinion alone is 135 pages — and I haven’t had a chance to read much of it. But the decision is ridiculous for the simple reason that it allows a majority of a population to strip a minority of equal protection of the laws. As the sole dissenting justice wrote today:
The equal protection clause is… by its nature, inherently countermajoritarian. As a logical matter, it cannot depend on the will of the majority for its enforcement, for it is the will of the majority against which the equal protection clause is designed to protect.
This case is really about whether a particular method to change the California Constitution is itself a violation the California Constitution. I’ve skimmed the decision and it seems to spend a lot of ink on the difference between a constitutional “revision” (which requires the legislature’s imprimatur) and a constitutional “amendment” (which does not), but it doesn’t really matter, because whatever you call it, changing a constitution is supposed to be difficult. As I wrote last year, it should take more than a simple majority to change a constitution. The whole point of a constitution is to have a restraint on day-to-day political passions. A constitution is supposed to be higher than ordinary law and therefore harder to amend. If it’s no different to pass a constitutional amendment than to enact a popular initiative, then you have mob rule. If not for decisions by the United States Supreme Court that found race and sex discrimination to be violations of the U.S. Constitution — which outranks the California Constitution — then it would be possible for the general population of California to enshrine constitutional discrimination against blacks and women today. The process for amending the California Constitution is nonsensical.
Our founders didn’t believe in direct democracy; they believed in representative government. They believed in the wisdom of having a particular group of people, chosen by the populace, to legislate and act in their best interests. They believed that this political class had “virtue,” an amorphous concept that I don’t think really exists, but put virtue aside and the point remains that legislators are usually smarter and more thoughtful than the populace at large. (There are exceptions, of course, such as Michelle Bachman.) The stupidly simple California amendment process flies in the face of the constitutional and political theories in which our founders believed.
Nevertheless, although this decision is a big disappointment for supporters of gay rights, I find myself not too concerned in the long run. Constitutional jujitsu is possible here: since it’s so easy to amend the state constitution, all you need is a simple majority to overturn Prop 8. The vote in November was close, 52% to 48%. Attitudes continue to change, and at some point — hopefully soon — a majority of Californians will support same-sex marriage rights, and Prop 8 will lie in the dustbin of history.
