When You Have Friends like the Supreme Court of California

In my last post, I explained how audacious the California Supreme Court and Proposition 8 foes were in ignoring standard legal procedure with regard to the lawsuit challenging Proposition 8. As of yesterday, the Court went ahead and decided to accept the lawsuit for review. The good news is that the Court refused the stay. That is: as of now, Proposition 8 is in effect. This was a prudent measure, since, should the lawsuit fail, we would have the law yo-yo-ing back and forth a little too much even for this Court.

But ignoring legal procedure, of course, was just the tip of the iceberg. Let us now confront the insult to the injury, and get to meat of their argument.

Here is what the lawsuit claims: Proposition 8 is not an “amendment” to the Constitution that can be enacted by ballot proposition. Rather, it is a “revision” to the Constitution, which requires passage by the legislature as well as the voters. Ergo: Proposition 8 has no effect. Nada. Zilch. We just wasted a lot of time and money and anguish for nothing.

Okay, let’s back up a little bit. How come no one brought up this “amendment/revision” argument before November 4, or even questioned it? How come California’s Attorney General did not suggest this or even hint at a problem in its published analysis of the ballot measure? And why did California’s Secretary of State certify this Proposition for the November ballot, without getting a legal opinion on this point? Anyone? (Sound of crickets chirping.)

If you find the distinction between an “amendment” and a “revision” mind-numbing, that is because it is. This is the sort of thing lawyers get paid outrageous sums to argue about. And the worst thing is, nobody really knows what these terms ought to mean, at least insofar as they relate to our Constitution. In a way, the meaning is left largely up to the Court. I know: Oh, great.

But even if you don’t appreciate the legal niceties, here is a step-by-step analysis of what is going on:

–To begin, a statute is different from the Constitution. A statute is a law, but if a statute violates the Constitution, the statute is invalid, because the Constitution sits at the top of the legal hierarchy. Before the Court’s May 15 opinion, there was a statute on the books (passed by Californians in 2000) that defined marriage as between a man and a woman.

–On May 15, the California Supreme Court declared that the statute defining marriage as between a man and a woman, and thus denying marriage to gay couples, violated the state Constitution’s equal protection clause. In this opinion, the Court acknowledged that the State of California, since its inception, had understood marriage as only between a man and a woman. The California Supreme Court’s opinion therefore constituted a reversal of all of California’s legal history (not to mention world history, but never mind . . . never mind).

–On November 4, the people of California told the Court where they could stick it, and passed Proposition 8 as an amendment to the state Constitution. Because Proposition 8 is now part of the Constitution, and not merely a statute, the California Supreme Court must accept it as the final word on the law of the state.

–Those opposed to Proposition 8 are now arguing before the Court that Proposition 8 is not an “amendment” at all, but a “sweeping revision” of the Constitution, and, because it was not passed by the legislature, it has no force or effect.

Now, here’s the problem; please follow, if you will. If I understand this argument correctly, when the Court changed California’s entire legal history on May 15, 2008, by throwing out the statutory definition of marriage and rejecting 150 years of California law, this was NOT a “revision” of our Constitution (which the Court is not allowed to do), but merely an “interpretation.” And now, if we want to go back to how the law existed those many eons ago on May 14, 2008, to how it was interpreted since the very first statute on marriage ever entered California’s code books, we now have to “revise” our Constitution? Haha! Oh . . . wait. I’m not sure if this is one of those situations where, if this were not so funny, it would be pathetic, or if this were not so pathetic, it would be funny.

This is incredible. In fact, I kind of relish the idea of the Supreme Court entertaining this spurious argument by declaring that the California Constitution revised itself, all on its own, while nobody was looking, and if we Californians want it to mean what it always used to mean, we now have to revise it back. No . . . really.

Let’s just take a good hard look at what the Court did on May 15. I know most people could not be bothered to slog through that frankly ludicrous tome that was intended to pass for a legal opinion, so I will try to explain it here. In fact, I think the Court went out of its way to make that opinion long and convoluted . . . because if the average Californian understood what they said, they’d be really pissed off.

We will start with standard Equal Protection analysis. It goes like this: first, you have to decide if the class of persons being discriminated against is a “suspect” classification. That is, it is okay for the law to discriminate sometimes, such as when females should get separate bathrooms from males, or illegal aliens should not be allowed to vote (ACORN notwithstanding). Other times, the classification is “suspect”—that is, no one can think of a reason to discriminate other than just bald prejudice, such as when blacks were forced to sit in the backs of buses.

Second, if you do find a suspect classification, Courts have to give the challenged statute what is called “strict scrutiny.” That is, when you have a statute that discriminates against a group, the Court looks at the statute really hard to see if there is any conceivable sound and good reason for the discrimination. The challenged statute may only be upheld if the court finds that: (1) the state has a “compelling interest” in achieving the goal of the statute, and (2) the statute is “narrowly tailored” to serve that purpose. Got all that? Okay, now to the Court’s analysis.

On May 15, the Court held that homosexuality is a “suspect” classification. It said that, in the matter of marriage, there is NO rational reason to differentiate between homosexuals and heterosexuals. I’m not kidding. Let’s move on: now we apply strict scrutiny. (Just to warn you: basically, in law, nothing stands up to strict scrutiny.) The Supreme Court said that California has no compelling interest in defining marriage to limit it to heterosexual relationships. NO COMPELLING INTEREST. Consequently, the statute that defines marriage is invalid.

Before I continue, I want to discuss this idea of “no compelling interest.” I have a hard time with this. Why? Well, because California has an entire code book dedicated to marriage law, which has applied exclusively to heterosexual couples throughout California’s history. Laws relating to marriage have existed since statehood because marriage has been, historically, the foundation of the family, which in turn has been the foundation of society as a whole. As a result, married couples have special legal treatment with respect property, contracts, criminal law, testimony, wills, estates, tax, and so on. You need a special license at the county office in order to get married, and counties keep records of marriage permanently. Marriage also creates certain presumptions in the law with respect to children. We have an entire court system dedicated to families. Family law is a specialized area of law practice, as is divorce law. Lawyers can make entire careers out of focusing just on these specific subjects. Law schools teach entire courses just on community property, which is a legal relationship that applies only to married couples. In fact, Community Property is one of only twelve subjects tested on the California State Bar exam, beating out such subjects as tax, intellectual property, securities, environmental law, and administrative law. So here we have whole bodies of California law relating to the protection and preservation of marriage, and marriage as the foundation of the family unit. We have whole bureaucracies that deal with matters related to marriage. These laws and administrative agencies represent untold hours of deliberating in the state legislature, in our state court system, and in our local government, and considerable sums of public money. And so, I am truly puzzled: can the California Supreme Court explain why the state of California spent so much time, money, energy, and resources on something the state has NO COMPELLING INTEREST in? Mind- boggling, to say the least.

How in the world did the Court arrive at its peculiar perspective? The Court reasoned (if you can call it that): (one) the legislature treats gay couples almost the same as married couples; so (two) it is therefore unfair, as a constitutional matter, to treat them differently. Hence, the equal protection clause DEMANDS that we give gay couples the right to marry.

You see, it all started when the legislature began to give a few rights here and there to homosexual couples. Even though California had a statute that said the term “marriage” applied only to heterosexuals, the legislature enacted a whole raft of other statutes giving homosexuals treatment very similar to married couples. So, instead of letting the legislature just do its thing, the Court said: “Ah, what the heck. Let’s go whole hog. If the legislature treats them as though they are sort of equal, even though we have a statute that says they are not, we may as well declare them equal as a matter of constitutional law.” Voila!

Now this is an interesting way to reason. Essentially, the Court contended that domestic partnership statutes, by treating gay couples similarly to married couples, governed their equal protection analysis. But how can statutes dictate the meaning of the Constitution? Especially when, at the same time, the Court is confronted by another statute that unequivocally states that marriage and domestic partnership are two different things. Ultimately, in trying to resolve a non-existent conflict between these statutes, the Court just decided to just declare the inconvenient one unconstitutional.

And what is even more interesting, you see, is that if Californians had only been smart enough to not give gay couples any rights at all, we would never have made them equal. Apparently, it is not enough that Californians were happy to let people have the freedom to live life as they choose, regardless of their personal views. It is not even enough that Californians were willing to recognize a slew of legal benefits to accrue to gay couples. No, Californians put themselves in a pickle. The Court concluded that Californians are a bunch of bigots because we didn’t go all the way, and declared that we could not be bigots anymore.

And then, along came Proposition 8 to put everything back to the way it was. Proposition 8 added just one simple sentence to the California Constitution. That sentence reads: “Only marriage between a man and a woman is valid or recognized in California.” And within a couple short weeks, we now have a brand new lawsuit to hash it all out again. The Court has a brand new opportunity to tell the majority of California voters that what they want and what they believe does not matter. I can just imagine the Court’s (unwritten) opinion:

Californians tried to take away privileges that we bestowed out of our ineffable wisdom and superior understanding of what California really needs—things that California’s citizens don’t understand because they are just ignorant voters. Honoring and revering thousands of years of tradition and law, and adhering to their most deeply held moral values, is unimportant . . . worthless. It is nothing more than an expression of “hate.”

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