California Legislature Calls for Prop 8 to be Thrown Out

According to an email update just out from Bill May of Catholics For The Common Good (not to be confused with “Catholics in Alliance for the Common Good”), the California State Senate passed on Monday resolution SR7, a non-binding resolution calling on the State Supreme Court to overturn Proposition 8, the amendment to the state constitution which passed back in November, defining marriage in California as between a man and a woman.

Anti-Prop 8 Resolution Passed the California Senate Today

Referring to the sovereign power of the voters as “mob rule”, San Francisco Senator Mark Leno asked the State Senate to adopt SR7, a resolution calling on the California Supreme Court to overturn Proposition 8. The measure, that has no force of law, passed 18-14 this afternoon (Monday, March 2).

A similar measure, HR 5, is on the Assembly floor and could come to a vote at any time. Please call your Assembly member and ask him or her to vote “NO”. Details can be found here: http://www.ccgaction.org/family/protectionofmarriage/CA/resaction09-02-17#action.

Perhaps our lawyers can enlighten me, but it seems to me that should the State Supreme Court follow the legislature’s request and overturn the amendment, then the democratic process would have fundamentally broken down.

The argument for throwing out Prop 8 is that it violates the equal protection clause of the California Constitution by denying a “fundamental right” to a particular minority group. Of course the difficulty is that Prop 8 does not claim to deny a fundamental right to a minority group, but rather defines marriage as something which can necessarily only be between a man and a women. Now since the California Constitution nowhere else speaks to the definition of marriage, I suppose the only argument the court could use would be some sort of universal outside knowledge that marriage is open to all of any combination of sexes and that the amendment thus seeks to single out one particular group to deny that right.

In other words, it could only throw Prop 8 out by assuming the conclusion. Yet if a court can do this, doesn’t that basically undercut the entire point of having laws, since one could then throw out any law on the basis of assuming that it was impossible to have such a law? Goodness knows, I’d be the first to agree that the project of ruling by positive law falls apart once there is not longer a common philosophical and moral basis for the state’s culture, but this would seem to be one of the first examples I can think of of such a collapse actually happening before our eyes.

19 Responses to California Legislature Calls for Prop 8 to be Thrown Out

  • “Perhaps our lawyers can enlighten me, but it seems to me that should the State Supreme Court follow the legislature’s request and overturn the amendment, then the democratic process would have fundamentally broken down.”

    In a word yes. The idea that an amendment to a constitution can be declared unconstitutional by a court removes the last fig leaf that we are governed by constitutions rather than by the courts that construe what the constitutions mean. If the California Supreme Court follows this advice from the California legislature, this will have ramifications far beyond the issue of gay marriage and far beyond California. It will be a naked and obvious attempt by the Court to substitute its policy preference for a part of the California Constitution. It will be then up to the People to determine whether they rule themselves, or whether they surrender that right to lawyers in black robes.

  • It’s certainly an usurpation of the democratic process. However, many legal scholars believe that courts should perform a counter-majoritarian function, and step in to protect discrete and insular minorities likely to be disadvantaged by the democratic process.

    From a cynical point of view, I suppose it’s not surprising that legal scholars and judges to talk themselves into believing their wisdom is necessary to protect the country from the unwashed masses. But sometimes this intervention is something I would support (e.g. Brown). Other times, not so much. It’s troubling that the court would step in so quickly to overturn a state referendum. Why have referendums at all?

  • Since when are gays a minority group?

    If they can be a minority group then bald white hispanics should be recognized as a minority group as well (me).

  • If a law is unconstitutional, then the Court should overturn it, no matter how it was passed. Democratic majorities possess no claim to greater sanctity just by being democratic majorities.

    However, Prop 8 is an amendment to the Constitution of California. By their very nature amendments cannot be unconstitutional. Moreover, even if this were a mere statute, I don’t think this would be unconstitutional.

  • “By their very nature amendments cannot be unconstitutional.”

    Precisely. I can envisage a court needing to resolve disputes between portions of a constitution that appear to conflict, but obviously any conflict between a portion of a constitution and an amendment to the constitution would have to be resolved in favor of the later amendment.

  • California is not a pure democracy, nor is the United States as a whole. Rather both institutions are representational constitutional democracies, meaning the constitution can trump the will of the people should the will of the people wish to ignore the basic rights afforded to all the citizens. In urging the State Supreme Court to overturn Proposition 8, the California State Senate — who were elected by the people — are not breaking down the California democratic process but rather upholding it, ensuring that the constitution is maintained. The constitution is, in fact, what maintains peace and order and prevents mob rule.

    But I feel I must respond to your assertion that since the California Constitution nowhere else speaks to the definition of marriage, the only argument the court could use would be some sort of universal outside knowledge that marriage is open to all of any combination of sexes. Unlike the Catholic Church which seeks to be informed by faith — a universal outside source of knowledge — The California Supreme Court has no such mandate. It uses the constitution itself. The means by which it does is published and available in public archives and on the internet. To sum it up, the court made the following reasons for the original decision to uphold the right for same sex couples to marry:

    1- In the case of Perez, the Court recognized that it was not constitutionally permissible to continue to treat racial or ethnic minorities as inferior.

    2- In the case of Sail’er Inn, the Court recognized that it was not constitutionally acceptable to continue to treat women as less capable than and unequal to men.

    3- The court now similarly recognizes that an individual’s homosexual orientation is not a constitutionally legitimate basis for withholding or restricting the individual’s legal rights.

    4- The right of marriage is not directly afforded within the constitution. Rather it is derived from article 1 section 1: the right to privacy, and article 1 section 7: the right to liberty. That is, a man and woman, because of their right to liberty and privacy, can freely enter into the marriage contract.

    5- As the court acknowledges that it is illegal to withhold either the right to privacy or the right to liberty to homosexual people, it would therefore also be illegal to withhold any rights that are derived from these – one being the right to marry. Therefore a man and man or woman and woman could also enter into the marriage contract.

    Currently, because of Proposition 8, the constitution contradicts itself. It allows homosexuals the right to privacy and liberty and then withholds a right derived from these: marriage. Both cannot be upheld by the same document. Trying to determine how to reconcile this is not an exercise in appealing for some secret and esoteric outside knowledge, but basic logic. The options are that homosexuals have the right to liberty and privacy, or they do not.

    Remember, this discussion does not affect the sacramental nature of Catholic Marriage. This is about entering into a contract. The two have been conflated in the media to the detriment of the church and the state. Furthermore, this does not lead to the great fear that anyone can now marry a child or a tree or a goat. The latter two do not have the protection under the constitution and the former cannot freely enter into contracts without the authorization of an adult. This isn’t a slippery slope. This is human rights.

  • Refusal to grant a public recognition of a marriage does not constitute a breach of the right to privacy.

  • Again, I’ll defer to our lawyers on here, but the claim that civil marriage derives from the rights to privacy and liberty and cannot possibly include any definition as to the sex of the parties involved seems like a massive reach to me — though I don’t question that the California Supreme Court did indeed make that reach in throwing out the previous state proposition (which wasn’t a constitutional ammendment as Prop 8 is).

    Again, you’re assuming your conclusion. You’re assuming that marriage is a sex-agnostic arrangment, and then claiming that because marriage does not necessarily have to be between people of the opposite sex that therefore it would be a violation of the constitution to restrict people from entering into it “because they’re gay”.

    As it stands, people who are gay are not restricted from entering into marriage contracts — so long as they do so with someone of the opposite sex. They just can’t do so with someone of the same sex. (Just as people who are natually polygamous are not restricted from entering into marriage contracts, so long as they only do so with one person.)

    Why does this violate democratic and constitutional principles? Because it means that you can no longer define what the constitution means by writing or ammending the constitution. I don’t understand how we can claim to still have a constitutional republic if we don’t take the text of the constitution as written and ammended to have meaning. By that logic, judges could go throwing out any ammendment simply by asserting that it violated their interpretation of some other part of the constitution.

    If we’re to have a constitutional republic, then it would seem to me that judges must accept the text of the constitution as written to be correct and come up with an interpretive framework that fits that. Otherwise, we’re simply being ruled by judges — not by a constitution which we write.

  • I can envisage a court needing to resolve disputes between portions of a constitution that appear to conflict, but obviously any conflict between a portion of a constitution and an amendment to the constitution would have to be resolved in favor of the later amendment.

    I would agree as a theoretical matter, but according to the California AG’s response to the amicus briefs, initiative amendments are subject to judicial review for compliance with the Constitution, and several have been struck down previously. I am not really familiar with the CA state law, but it appears that the CA Supreme Court has previously struck down initiative amendments.

    http://www.courtinfo.ca.gov/courts/supreme/highprofile/documents/agresponse.pdf

  • What’s interesting to me here is the question: Is the claim in regards to same sex marriage falsifiable. In other words, given the interpretation which judges have come up with is there any way in which the constitution could be written or ammended that _would_ be able to define marriage as being only between two people of the opposite sex — or is this a claim in which once the Judge’s have decided that liberty and privacy demand gay marriage, there’s absolutely no way the constitution could be written that would not be thrown out.

    If the latter, then it’s clearly whatever’s in the judges’ heads that rules the state, not the constitution. One might as well go without the document entirely, since it doesn’t matter what it says.

  • California is not a pure democracy, nor is the United States as a whole. Rather both institutions are representational constitutional democracies, meaning the constitution can trump the will of the people should the will of the people wish to ignore the basic rights afforded to all the citizens.

    Nice try, but you’re missing some important details. The constitutions offer means of amendment. Difficult means, for sure, but nevertheless. The reason for amending the constitution is because particular portions of the constitutions have been deemed insufficient in dealing with particular matters. Once the amendment has been added to the constitution, it is part of the constitution. Thus, in the circumstance of amendments, the will of the people can trump the constitution.

    Let me repeat: it is not unconstitutional to change the constitution, under the guidelines laid out for changing the constitution. Now, you can try to make an argument that, if there is a portion of the constitution with says “A” and you make an amendment that specifically states “not A”, then there is reason for concern. However, this is not the case in the slightest. This “derived” human right you speak of is nowhere enumerated: the derivation of it is questionable at best, a strain of reason to be charitable, and utter doggerel in reality. We’ll get to that in a moment.

    In urging the State Supreme Court to overturn Proposition 8, the California State Senate — who were elected by the people — are not breaking down the California democratic process but rather upholding it, ensuring that the constitution is maintained. The constitution is, in fact, what maintains peace and order and prevents mob rule.

    In two breaths you contradict yourself. You assert on one hand that the constitution is what maintains peace and order and prevents unruly mobs from issuing whatever order comes around, and on the other hand you state that the constitution can be thrown down by mob rule. If you don’t see this, let me clarify.

    First, the amendment was added to the California constitution through constitutional processes. There’s nothing about it that explicitly conflicts with the constitution (only the court’s interpretations thereof, which is the whole point), and thus the amendment is now part of the constitution.

    Second, the protest against the amendment, as opposed to being quelled by the new law of the land (or more precisely, the newly clarified law of the land), is being railed at.

    Third, the Senate seeking the courts to overturn this amendment is not using the constitutional means to change the constitution. Rather, they are seeking to bypass the constitutional means and are resorting to the “we’re loud enough and we say so” means of overruling the amendment. If that isn’t being ruled by mob mentality, I don’t know what is.

    Now let’s look at the Supreme Court’s decisions:

    1- In the case of Perez, the Court recognized that it was not constitutionally permissible to continue to treat racial or ethnic minorities as inferior.

    While I have no problems with this statement, per se, I would point out that homosexuality is neither a racial trait nor an ethnic background.

    2- In the case of Sail’er Inn, the Court recognized that it was not constitutionally acceptable to continue to treat women as less capable than and unequal to men.

    I could also quibble with the “less capable” part, but just because I think you should state “no one should be deemed less capable simply by their sex (save in those instances where sex matters, such as insemination and pregnancy), but other attributes such as physical strength, health, stamina, etc.” And the reason for stating this is because it seems this statement is geared towards a “women are no less capable than men in marrying women” type of statement, which is immediately dispensed by the “save in those instances where sex matters” clause I think is necessary.

    3- The court now similarly recognizes that an individual’s homosexual orientation is not a constitutionally legitimate basis for withholding or restricting the individual’s legal rights.

    No argument here. However, one should pay close attention to the words “orientation” and “legal rights”. Orientation does not immediately imply action, and legal rights are not so universal that no conditions can be put on them. For example, you have a legal right to own a gun provided you are not a felon or domestic abuser, have filled out the paper work, and have jumped through all the other hoops. Furthermore, just because people want something does mean there is a legal right to it. A person recognized as having a sexual attraction to little children–but does not act on it–doesn’t have a legal right to work in a day care, no matter how much he wants to, simply because it isn’t prudent (and in fact could be quite dangerous, given the temptation).

    4- The right of marriage is not directly afforded within the constitution. Rather it is derived from article 1 section 1: the right to privacy, and article 1 section 7: the right to liberty. That is, a man and woman, because of their right to liberty and privacy, can freely enter into the marriage contract.

    This argument is by far too simplistic and ignores a lot of problems. For example, the right to privacy is not absolute, and the right to liberty hardly means the ability to engage in anything. If a behavior is illegal, for example, it doesn’t matter if it happens in private. It is still illegal. Furthermore, for a behavior that is wrong, but not necessarily illegal, it is not necessarily protected, either, since it does not require the state to put a rubber stamp of approval on it.

    As a note, also realize that the amendment directly targets this argument. The amendment, in defining marriage as between a man and woman, states that allowing “marriage” between two people of the same sex is beyond the scope of liberty.

    5- As the court acknowledges that it is illegal to withhold either the right to privacy or the right to liberty to homosexual people, it would therefore also be illegal to withhold any rights that are derived from these – one being the right to marry. Therefore a man and man or woman and woman could also enter into the marriage contract.

    Accepting the flawed arguments, this conclusion seems inevitable. But the “right” to marriage is not simply a derivation of the rights to privacy and liberty. First of all, the marriage of a man to a woman is a necessary aspect for the protection and continuation of society, being geared around family (both the procreation thereof and the solidarity formed when two families intersect in the marriage vows). Based on this, talking about the “right” to marriage is misleading, because there is a weak obligation (weak meaning that not everyone is obliged to do so, but most should and will) attached to it.

    Second, because of the importance of marriage to the function of society, certain prohibitions have be put up around it, and the above arguments (as stated in your reply) do not address these concerns. In fact, you’ll see why this is a slippery slope argument in a moment. But we see such prohibitions as immediate family members (siblings, parents, children, cousins) cannot marry. A person who is currently married cannot marry again without divorcing first (or waiting for the spouse to die). A person under a particular age (depending on place) cannot marry. There are reasons these limitations have been put into place, reasons beyond rights to privacy and liberty, and reasons that have everything to do with the “right” and necessity of marriage to begin with.

    Now, if marriage is only about “privacy” and “liberty”, what argument is there against incestuous marriages? Plural marriages? Even marriage with little children (assuming the child’s parent co-signs the marriage contract)? Heck, if more than two people can sign a marriage license, why not just one? Who says that “marriage” should just be between humans? After all, this is a matter of privacy and liberty, right?

    So, no, the argument does not hold. The conclusion the courts came to was fallacious because their reasoning was first too simple and second already presupposed the conclusion. Thus this “right” for homosexuals to marry has not even honestly been established as a right to begin with. And thus the amendment is not unconstitutional, and the seeking to overturn the amendment through the courts is in fact a gross violation of the constitution.

  • Here is the brief of the intervenors, the people who support upholding Proposition 8, in response to the amicus briefs and the response brief of the California Attorney General.

    http://www.courtinfo.ca.gov/courts/supreme/highprofile/documents/hollingsworthresponse.pdf

    For those with a lot of time on their hands, here are all of the amicus briefs.

    http://www.courtinfo.ca.gov/courts/supreme/highprofile/prop8.htm#amicus

  • Last note. Sometimes writing a long reply means others beat me to the punch. If amendments are up for judicial review even after having been voted into law, then that weakens my argument a little. However, the general protest remains in that amendments are meant to refine how the constitution is interpreted, and thus if the amendment contradicts some interpretations, but not what the constitution says otherwise, then throwing the amendment out because of the interpretation remains a mob rule mentality as opposed to a constitutional mentality.

  • I’m not a lawyer, and I don’t even play one on TV, nor did I stay at a Holiday Inn Express recently, but the whole idea that an amendment to a constitution could possibly be “unconstitutional” is completely incoherent. In order to be unconstitutional, a statute must require or forbid something that is either permitted or forbidden by some constitutional document. But this definition cannot possibly apply to the contents of that constitutional document itself. If it did, then the United States Constitution already contains unconstitutional amendments (18 & 21).

    In other words, if Proposition 8 contradicts anything else in the California constitution, all that means is that the other stuff is repealed by virtue of the inclusion of Proposition 8.

    Someone might make the argument that, in the case of the US Constitution, the 21st amendment specifically refers to the 18th amendment and actually uses the expression “is hereby repealed” and, hence, is a different sort of case. On this view, the text of Proposition 8 stands in a different sort of relationship to the rest of the California constitution than the relationship between the 21st Amendment and the rest of the US Constitution. But this merely raises the question of what we are to do when a constitutional document contains clauses that are logically contradictory–who is the arbiter of such cases?

    The courts are the arbiters of how to interpret constitutional laws and how to apply them in ways that are most consistent with the intentions of lawmakers. Hence, since Proposition 8 is more recent than anything else in the document, it must take precedence in two senses: first, because it reflects more accurately the present intentions of the people of California, and second, because it was passed by referendum and not the legislature, it more accurately reflects the intentions of the people as a whole, who are the statutory “lawmakers” in this particular case.

    In any event, it has never been in the power of the courts to either include or exclude any constitutional texts, their powers are restricted to matters of interpretation only.

  • My argument isn’t on how the court should rule on the constitutionality of proposition 8. I do not and would not deny that I have strong opinions on the matter, nor that I would prefer one ruling over another. My comments, however, were meant to respond to DarwinCatholic’s original post. He worries that when the senate petitions the court to overturn proposition 8′s amendment the stability of California’s democracy is itself at risk. It is not. It is the court that protects our democracy. It is what the founding fathers of the nation used to put the legislative and executive branches of the government in check. And though it may sound counter-intuitive, it is what keeps the majority of the population in check. It keeps any majority from oppressing any minority. It is the reason why women can own property, why black children can attend any school, why you can’t fire a lesbian from her job simply because she is a lesbian.

    On DarwinCatholic’s second post he wrote: “If we’re to have a constitutional republic, then it would seem to me that judges must accept the text of the constitution as written to be correct and come up with an interpretive framework that fits that.”

    I agree with exactly that. The constitution, as written, now has an internal contradiction. Either the amendment negates the original interpretation of the constitution, or the original interpretation of the constitution prohibits an amendment voted in by the people. I have no idea how the court would rule. Perhaps it is true that a later amendment has priority over an earlier interpretation. Perhaps, as John Henry points out, the very fact that previous amendments have been over-turned is because the constitution explicitly gives this power to the judges. But the mere fact that the court can interpret the law–that it is mandated to do so–does not imply that the court is legislating, harming the rights of the people, hurting democracy, or that they have “some sort of universal outside knowledge.”

    It is this power that distinguishes California from Syria and Myanmar.

  • Alex,

    See, the problem as I see it is when you say “The constitution, as written, now has an internal contradiction.” and then continue “Either the amendment negates the original interpretation of the constitution, or the original interpretation of the constitution prohibits an amendment voted in by the people.”

    The constitution (including the Prop 8 ammendment to it) as written has no contradition. The contradiction is between the interpretation previously offered by the court (what they interpreted the existing text to mean) and what the ammendment says. The ammendment contradicts something which the court previously held to have been implicit in the broad rights outlined in the constitution.

    Now, why should the claim that in this case the court’s previous interpretation should have precedence?

    Well, imagine that around 1890 a heavily racist series of administrations had been voted into power, and a succession of presidents appointed racist supreme court justices to the US Supreme Court, who then proceeded to rule in a landmark case that the 13th, 14th, and 15th ammendments to the US Constitution were in contradiction to the Dred Scott v. Sandford verdict, and therefore invalid. The justices throw those three ammendments out.

    Not only would that be a huge setback for civil rights, but it would be something which it was fundamentally impossible for people to resolve at some later date. If elements of the text of the constitution can be thrown out based on how judges interpret other parts of the constitution, then we cease to have a constitutional republic.

    You’re right that our nation’s founders envisioned the courts of checking the power of the executive and legislative branches, and that for a long time this has in part been done by considering the constitutionality of laws. But the whole system falls apart if the court can reject parts of the constitution (including duly passed ammendments) based on their interpretation of other parts of the constitution. The whole point of ammending the constitution is to change what it means. And the whole point of a constitution more generally is that it means what it says and that the only way of changing that is to ammend the constitution.

    We’ve been in tension over that for the last 40-50 years as the national and state supreme courts have increasingly read implicit rights into the existing text and used those implicit rights to overturn legislation. But up until this innovation it was always at least theoretically possible to resolve such disputes by ammending the text of the constitution. However, when we reach the point where courts can reject an ammendment on that basis that it does not conform to the court’s prior opinions (unless as John Henry notes CA has its own process peculiar to the state in which a new ammendment must first pass court scrutiny) it stikes me that we’ve ceased to have a constitutional republic and lapsed into a judicial/oligarchic republic.

    In that sense, there will be a lot less distinction between California and Syria or Myanmar if the state supreme court throws out this ammendment than there was before.

  • It is the court that protects our democracy.

    Alex, here you are missing the point. It isn’t the courts that protect democracy. They have the duty of trying to judge cases and verify constitutionality of things, so they do play a role, but they’re far from the only thing. What you are implying is that the judiciary is the highest order, which it is not. Nationally speaking, it is one of three branches, each of which checks the others. There are checks on the judiciary to keep it from going out of control, which it can do and arguably (though I don’t see there’s much argument against) have done so in the past.

    No, what really protects democracies is a moral and educated populace.

    The constitution, as written, now has an internal contradiction.

    See, you’re still not getting the point of the problem. As written, the constitution has no internal contradictions. The only “contradiction” is between what is now written into the constitution, and what the judiciary attempted to read into it. The fact that the public has the opportunity to add amendments into the constitution that nullify bad interpretations is one of the checks that exists on the judiciary. If the judiciary can then arbitrarily toss those amendments out of the window (as opposed to actually pointing to what everyone can agree is a contradiction), then it has unfettered control over what is, or is not, constitutional. That essentially makes the de facto power of the land, which in turn breaks the whole notion of a constitutional republic.

    It keeps any majority from oppressing any minority.

    The fact that this is at all being construed as oppression is ridiculous. As I mentioned before, this supposed “right” for homosexuals to marry is fabricated out of infantile reasoning. Why can women own property? Because a person’s sex is not an intrinsic part of owning property. Why can black children attend any school? Because skin color is not intrinsic to intelligence, diligence, location, social interaction, etc. How then is marriage different? Precisely because the sex of the parties involved is an intrinsic part of marriage. To make an amendment that makes this explicit no more denies liberty to someone than would, say, making an amendment saying that only woman (or at least people with the functioning organs) can become pregnant.

  • What is so deeply disappointing is that the courts, which are supposed to be so enlightened, don’t understand why these fabricated “rights” are derived from “infantile reasoning,” as Ryan so nicely put it. The courts haven’t been able to reason their way out of a paper bag for years. They exalt their own position and power, and the entire concept of judicial review, above and beyond basic reasoning. Ryan should file an amicus brief; he pretty well demolishes this faulty reasoning in a few paragraphs.

    It boggles the mind that anyone could even think that there is a natural right being violated by the amendment. How can these judges not see that the state’s interest in marriage is not in making individual privacy and liberty sovereign, but in fostering the good of society through the transmission of culture via the family unit? Same-sex marriage is just another chisel blow to an already weakened institution. I would argue that in itself it might not be totally disastrous for society to allow it, but why do we keep drip-dripping poison into our own drink? Divorce, contraception, abortion, and the shifting mores brought on by the sexual revolution… Yes, let’s just add gay marriage to the roster, shall we? Since none of those other things could’ve possibly been detrimental to marriage and family… How can we allow the drastic social experiment we’re undertaking without even a hint of trepidation at where it might lead us? It seems the argument goes, “Well, we’ve already screwed it up, so what’s one more nail in the coffin?”

    Marriage as romantic relationship and private contract above all else? God help us all.

  • Heck, if more than two people can sign a marriage license, why not just one?

    Exactly!!! Who says marriage has to be between *two* people? I’m single and I’m being oppressed! I want the full rights, benefits, and privileges of marriage, too!

    Ridiculous.

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