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The California Supreme Court declared today that separate but equal is acceptable for gays in California when it comes to marriage – indeed it is now enshrined, oddly enough, as an exception to our Equal Protection clause until voters decide to un-enshrine it through a popular vote. Voting was central to the whole case as the court tackled the question of whether a majority of Californians can amend the state constitution at the ballot box to deprive a suspect class of a fundamental right. The majority decided that 50% plus 1 person voting on election day could indeed take such a right away.
In California the initiative process allows a majority of voters to amend the constitution. Until Proposition 8, however, the people have never voted to take a fundamental right away from a suspect class. But for the U.S. Constitution, allowing such a thing would mean Californians could take fundamental rights away from Catholics, or African Americans, or women, simply through this initiative process and a majority vote. In most cases, the U.S. Constitution could be used to strike down any such act, but not in this case when the vote involves a right protected by the California constitution but not the federal constitution. Such rights, regardless of how fundamental and regardless of suspect classification, can simply be voted away by a majority. One wonders if a majority could even vote away the fundamental nature of certain rights or vote away the suspect class designation of any group, regardless of previous supreme court interpretations.
It looks like anything goes as long as it is not considered a revision to the constitution as opposed to an amendment, in which case more than a mere initiative and majority vote would be necessary. This distinction framed the court’s opinion today: Proposition 8 was an amendment not a revision, and thus it is now part of the constitution that the court must interpret and enforce. But the court, giving its majority opinion through Chief Justice Ronald George, cobbles together precedent to define "revision" in a confusing and counter intuitive way.
In a nutshell, the test applied by the majority was that a revision to the constitution (as opposed to an amendment) involved "far reaching changes in the nature of our basic governmental plan." Here it is stated another way: revision is accomplished when an act "necessarily or inevitably will alter the basic governmental framework set forth in our Constitution." One example given by the majority was part of an amendment that was struck down because it included a section that required that the state constitution not provide criminal defendants with greater rights than the federal constitution. The court said this was a revision not an amendment because it vested "all judicial interpretive power, as to fundamental criminal defense rights, in the United States Supreme Court" as opposed to California courts.
I still don’t really know what this means, but it may not matter because it isn’t clear that precedent really constrains the court to this narrow and bizarre definition. The dissent says the following before going into its own interpretation:
The cases cited by the majority do indeed hold that a change to the Constitution that alters the structure or framework of government is a revision, but these cases do not, as the majority erroneously concludes, also stand for the inverse of this proposition: that a change to the Constitution that does not alter the structure or framework of the Constitution cannot constitute a revision and, thus, necessarily must be an amendment. The reason is simple. None of the cases cited by the majority considered this issue, because it was not raised.
Even the majority seemed to acknowledge that this interpretation of precedent may not be such a bright line, going out of its way to write that gays still have all the underlying rights and privileges of marriage, just not the designation of "marriage" and:
there is no need for us to consider whether a measure that actually deprives a minority group of the entire protection of a fundamental constitutional right or, even more sweepingly, leaves such a group vulnerable to public or private discrimination in all areas without legal recourse … would constitute a constitutional revision under the provisions of the California Constitution.
Whether or not the court wants to leave such legal writing for future justices with a different more sweeping set of facts, this court actually has made the decision today by clearly limiting its definition of "constitutional revision."
The court had plenty of leeway to make a different argument. Namely, when the change is to the equal protection clause as it applies to a particular class, even a minor deprivation renders the positive right of equal protection little more than a privilege afforded only to those groups and for those rights a majority of Californians are willing to accept. Thus voting to limit such rights is a revision to the constitution not a mere amendment, and more process is required.
But what about expanding, rather than limiting, equal protection rights through a majority vote? The court addresses this:
… under petitioners’ approach, the people would have the ability — through the initiative process — to extend a constitutional right to a disfavored group that had not previously enjoyed that right, but the people would lack the power to undo or repeal that very same extension of rights through their exercise of the identical initiative process.
Heaven forbid! The court goes on …
Again, neither the history of the provisions governing the making of changes to the California Constitution, nor the many past cases interpreting and applying those provisions, support petitioners’ assertion that the amendment/revision distinction properly should be understood as establishing such a “one-way street” or as mandating such a seemingly anomalous result.
"One way streets" in the law aren’t that unusual – indeed the Chief Justice seemed to be following a "one way street" of legal precedent in the midst of a busy downtown clusterf*** with avenues heading in all directions. Equal protection implies protection, not a lack thereof, and it makes sense that narrowing who it applies to and/or under what circumstances it applies would require more judicial oversight. On the other hand, expanding those rights – giving them to more people or under more circumstances – doesn’t raise a lot of cautionary red flags within the doctrine of equal protection and its history of protecting the rights of disfavored minorities.
In many ways, when we have expanded equal protection and provided new rights for people, whether at the federal or state level, we are really just finally acknowledging, as a people or as a state, rights that have existed (or should have existed) all along. We never should have denied the right to vote from black people or women. These are inalienable rights, and it just took some time for our government to formally recognize them. Would anyone argue that blacks have the right to vote now, but they should not have had the right to vote in 1860? Discovering those rights collectively usually is a one way street – once "discovered" only the truly ignorant would argue for going back.
We will move on to the next vote on same sex marriage; and equality for gays will be stronger when supported through the ballot box. Practically, that will make our movement stronger; and I favor a ground up approach to human rights over an elitist approach to human rights any day.
The main problem with the California initiative process isn’t the voting, it’s the money. People or organizations with lots of money can manipulate the voting process; if anyone denies this ask them why people raise money at all if it doesn’t play a role (in my opinion a major role) in these initiative elections. It’s also true that pure democracy, even without the influence of wealthy, powerful entities, still may require caution when rights for minorities are the issue; but I firmly believe the threat would be far less without that influence of power and wealth.
Regardless, I feel the democratic (litte "d") forces are moving forward and equality for gays is coming whether the California Supreme Court or the Mormons support it or not. That doesn’t mean we should all just sit by and wait for it to happen (the other side will take advantage of such inaction); but we must grasp the momentum and make sure it moves us toward freedom.
Vote. March. Agitate. Tell your friends and family to do the same. The Separate but NOT Equal ruling by the Supreme Court of California was an awful opinion by the court that must be overturned. If the people of California have to do it, let’s get to work!
CARLOS VILLARREAL is Executive Director of the National Lawyers Guild San Francisco Bay Area Chapter. He can be reached at firstname.lastname@example.org.