>First published by BlogCritics, on 2 June 2009
The recent California Decision on homosexual marriage has little to do with homosexual marriage.
One of my former law partners was fond of saying, "we can argue about it or we can look it up." That notion applies to an evaluation of the California Supreme Court decision on Proposition 8: it is quite useful, in evaluating any court decision, to read or otherwise become reasonably familiar with what the court actually said.
There has recently been lots of discussion — ostensibly related to the California case — about whether homosexual marriage is a good or a bad thing. For whatever, if anything, my opinion is worth, that sort of discussion serves a useful purpose, even if it has very little to do with the court case under discussion. There has been rather less discussion about California's Constitutional procedures, under which some ballot propositions may lawfully change the California Constitution and under which others may not. I think such discussion is also salutary, particularly in the context of the California case.
Here, the California Supreme Court was not faced with any questions about the goodness or badness of homosexual marriage; nor was it called upon to decide whether the procedures for Constitutional changes mandated by the California Constitution are good or bad. It had only one real question to resolve:
When Proposition 8 added Section 7.5 to the California Constitution providing that "Only marriage between a man and a woman is valid or recognized in California" did the measure, by virtue of the manner in which it was adopted, "constitute . . . a Constitutionally permissible change to the California Constitution."
The California Supreme Court did not attempt to offer opinions about whether marriage other than between a man and a woman is good or bad, socially acceptable, should be socially acceptable or anything else of that sort. Nor did the Court even remotely approach this possibly interesting question: Despite the new Constitutional provision, would California recognize a marriage between a gay man and a lesbian woman? Even if publicly and openly homosexual, they would still be a man and a woman. The issue was not presented, and there was little if any reason for the Court to consider it, if for no other reason than that the answer is obvious: such a union would be considered a marriage.
The Court said,
First, as explained in the Marriage Cases . . . our task in the present proceeding is not to determine whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution. Regardless of our views as individuals on this question of policy, we recognize as judges and as a court our responsibility to confine our consideration to a determination of the constitutional validity and legal effect of the measure in question. It bears emphasis in this regard that our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values.
[T]he principal issue before us concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process so as to incorporate such a limitation as an explicit section of the state Constitution. . . . [The California Constitution] provides that once an amendment is proposed by either [of two defined] means, the amendment becomes part of the state Constitution if it is approved by a simple majority of the voters who cast votes on the measure at a statewide election. (Id., art. XVIII, § 4.)*
Previously, the California Supreme Court had invalidated a statute adopted by referendum. That statute purported to create a California statute defining marriage as only between a man and a woman; it did not purport to change the California Constitution, into which the Court had imported a right to marriage. Since the statute was inconsistent with the California Constitution as interpreted, the Court invalidated the statute. Proposition 8, unlike the earlier proposition, involved an amendment to the California Constitution. Like it or not, the difference is critical under California law; that may seem silly or perverse, but unless the procedures for amending the California Constitution are changed — not by the Court but via the procedures provided for by the California Constitution itself — that's where matters now stand and must stand.
All or most of the Californians who voted in favor of Proposition 8 may have been simple minded, bigoted perverts who hate homosexuals with a burning passion and were seized with an uncontrollable desire to harm them because to do so would enhance their own feelings of moral superiority. Interesting thoughts, perhaps, and arguably of some sociological significance; totally irrelevant, however, in the context in which the California Court rendered its decision.
There was no question whether an "amendment" had been properly proposed in Proposition 8. Hence, the question before the Court was whether it was actually an "amendment" as it purported to be or, instead, a "revision." Proposition 8, by virtue of the manner of its adoption, could "amend," but not "revise" the Constitution; the procedures for "revision" of the California Constitution are far more onerous than for a mere "amendment." (As noted by the Court, the California Constitution, ratified in 1879, has been amended more than five hundred times; the U.S. Constitution, ratified in 1788, has been amended only twenty-seven times. One likely reason for this is that the California Constitution is far easier to amend than is the U.S. Constitution.)
The amendment — revision distinction, perhaps unique to California, goes far beyond mere semantics, and there was little if any valid basis for ruling other than as the Court did: that Proposition 8 involved merely an "amendment." Reviewing years of history and of judicial precedent, it was clear to the Court that an "amendment" is something which does not fundamentally change the form of Government; a "revision" is something which does. Under the Court's history and precedent-based analysis, it was clear that a definition characterizing some but fewer than all unions as "marriage" did not fundamentally change California's form of Government.
No questions of whether the California Constitution's provisions for changing it are silly or should be revised were before the Court. The Court had no authority to answer such questions, because it was bound by the California Constitution, and had no basis for considering such matters. Judges are not appointed to be philosopher kings, with the task of ruling a State or country as they wish; instead, they have quite circumscribed functions; they must not attempt to usurp the functions of the Legislative or Executive branches, or (as here) of the people, obnoxious though they may well be.
This case is significant in connection with the confirmation of Judge Sotomayor as a United States Supreme Court justice. I strongly suspect, but obviously do not know, that were Judge Sotomayor a California voter, she would have voted against Proposition 8. I also strongly suspect that, had she been a member of the California Supreme Court, she would have joined in upholding the Constitutional amendment embodied in Proposition 8, and that she would have done so regardless of her personal feelings about the rights of homosexuals. It is quite possible to to be strongly opposed to a law, as stupid or unfair, while simultaneously deeming it Constitutional. The ability of a judge to uphold a law which he finds personally obnoxious, or to strike down one even though he finds it pleasing, is highly important to our system of law. For a judge to put his personal feelings above his judicial obligations is anathema.
The California Supreme Court did not attempt to resolve any questions under the United States Constitution; such questions were not before it, and it could not have provided the ultimate answers in any event. I very strongly suspect that the U.S. Supreme Court will eventually have to decide these questions. At first glance, they probably include:
What might be the impact of the full faith and credit provisions of the U.S. Constitution, under which each State must generally give full faith and credit to the lawful actions of every other state? Is a marriage between (or among) homosexuals, recognized in Massachusetts, required to be recognized in California? Under the California Court's decision and the California Constitution as amended, it is not to be recognized.
Is any Federal right, properly applicable to actions by States under the Fourteenth Amendment, impermissibly abridged by the California Constitution as amended? This is a real bear of a question, and possibly raises the question of whether the Federal Government must itself recognize homosexual marriages for tax, social security and other purposes. Must it do so at all, or only for residents of States where homosexual marriage are recognized? Or must it do so for all homosexual unions, regardless of State recognition, to prevent an unconstitutional inequality as between its treatments of some "marriages" and others? These are questions looking for an answer.
There are probably other related questions which the U.S. Supreme Court will eventually be called upon to consider.
*A substantial majority of the California Supreme Court agreed with the decision, each in his own words and each in his own way. Chief Justice George wrote the Court's opinion. Justices Kennard, Baxter, Chin and Corrigan filed separate concurrences, without offering any words explaining why they did so or in what respect(s) they may have disagreed with the Opinion. Justices Kennard and Werdegar filed separate concurrences disagreeing with some of the reasoning in Justice George's opinion, but agreeing with the result. Judge Moreno filed a concurring and dissenting opinion, disagreeing with most of the Court's reasoning and, except in one respect, with the result. Hence, there were six justices in the majority, and one not. In the Court's earlier marriage case, finding that the statute adopted through the referendum process violated the California Constitution as it then existed, Chief Justice George wrote the Court's opinion, in which Justices Kennard, Werdegar and Moreno concurred. Justice Baxter concurred part and dissented in part, along with Justices Chin. Justice Corrigan dissented in major respects.