May 19, 2008
California, judicial arrogance and gay "marriage"
I wrote last week about the decision by judges to remake society and redefine marriage, venting my spleen thusly:
Thank goodness the California Supreme Court reminded everyone that it doesn't really matter who we elect to represent us; it's the imperial judiciary that runs the show, rewriting the law to say what the legislature was really trying to say, throwing out statutes when they don't satisfy the policy preferences of our black-robed rulers, telling the People to take their voter initiatives, propositions and Constitutional Amendments and cram them where the sun don't shine.
Commenter BullButz disagrees, impressed less by the merits of my rhetoric than by my capacity for bloviating.
Wow! That's a bold statement without any explanation of how this week's gay marriage cases did anything other than interpret the CA Constitution in such a way that found that the voter initiative that amended a statute violates the CA Constitution. This isn't an originalist vs. living constitution debate. This is a case which simply says that the way an initiative amended a statute is unconstitutional. Unless you're saying that Marbury v. Madison was wrongly decided and justices shouldn't decide whether statutes are constitutional or not.
I realize the 120+ pages it takes to get to this analysis is intolerable reading, but this case is not evidence of judical legislation imposed based on the justices policy views.
Mr. BullButz then reminds me that the four-justice majority was comprised of three Republican appointees and one Democratic selection, proving ... what? That GOP governors who try to appease centrists end up putting squishy activist judges on the bench, too?
I'll readily concede that point, proven by this decision and thousands more, from state to federal, East Coast to West, from sea to shining sea.
As to BullButz' contention that the California Supremes merely did their jobs and cleaned up after the incompetent (or racist) People, I'll allow Justice Baxter to speak for me, quoting liberally from his dissent in the gay marriage case (because I don't feel like reinventing the wheel, and Baxter says it well).
I cannot join the majority’s holding that the California Constitution gives same-sex couples a right to marry. In reaching this decision, I believe, the majority violates the separation of powers, and thereby commits profound error.
Only one other American state recognizes the right the majority announces today. So far, Congress, and virtually every court to consider the issue, has rejected it. Nothing in our Constitution, express or implicit, compels the majority’s startling conclusion that the age-old understanding of marriage — an understanding recently confirmed by an initiative law — is no longer valid. California statutes already recognize same-sex unions and grant them all the substantive legal rights this state can bestow. If there is to be a further sea change in the social and legal understanding of marriage itself, that evolution should occur by similar democratic means. The majority forecloses this ordinary democratic process, and, in doing so, oversteps its authority.
[...]
The majority’s mode of analysis is particularly troubling. The majority relies heavily on the Legislature’s adoption of progressive civil rights protections for gays and lesbians to find a constitutional right to same-sex marriage. In effect, the majority gives the Legislature indirectly power that body does not directly possess to amend the Constitution and repeal an initiative statute. I cannot subscribe to the majority’s reasoning, or to its result.
[...]
The question presented by this case is simple and stark. It comes down to this: Even though California’s progressive laws, recently adopted through the democratic process, have pioneered the rights of same-sex partners to enter legal unions with all the substantive benefits of opposite-sex legal unions, do those laws nonetheless violate the California Constitution because at present, in deference to long and universal tradition, by a convincing popular vote, and in accord with express national policy, they reserve the label “marriage” for opposite-sex legal unions? I must conclude that the answer is no.
... Left to its own devices, the ordinary democratic process might well produce, ere long, a consensus among most Californians that the term “marriage” should, in civil parlance, include the legal unions of same-sex partners.
But a bare majority of this court, not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the People themselves. Undeterred by the strong weight of state and federal law and authority, the majority invents a new constitutional right, immune from the ordinary process of legislative consideration. The majority finds that our Constitution suddenly demands no less than a permanent redefinition of marriage, regardless of the popular will.
In doing so, the majority holds, in effect, that the Legislature has done indirectly what the Constitution prohibits it from doing directly. Under article II, section 10, subdivision (c), that body cannot unilaterally repeal an initiative statute, such as Family Code section 308.5, unless the initiative measure itself so provides. Section 308.5 contains no such provision. Yet the majority suggests that, by enacting other statutes which do provide substantial rights to gays and lesbians — including domestic partnership rights which, under section 308.5, the Legislature could not call “marriage” — the Legislature has given “explicit official recognition” to a California right of equal treatment which, because it includes the right to marry, thereby invalidates section 308.5.5
I cannot join this exercise in legal jujitsu, by which the Legislature’s own weight is used against it to create a constitutional right from whole cloth, defeat the People’s will, and invalidate a statute otherwise immune from legislative interference. Though the majority insists otherwise, its pronouncement seriously oversteps the judicial power. The majority purports to apply certain fundamental provisions of the state Constitution, but it runs afoul of another just as fundamental — article III, section 3, the separation of powers clause. This clause declares that “[t]he powers of state government are legislative, executive, and judicial,” and that “[p]ersons charged with the exercise of one power may not exercise either of the others” except as the Constitution itself specifically provides. (Italics added.)
History confirms the importance of the judiciary’s constitutional role as a check against majoritarian abuse. Still, courts must use caution when exercising the potentially transformative authority to articulate constitutional rights. Otherwise, judges with limited accountability risk infringing upon our society’s most basic shared premise — the People’s general right, directly or through their chosen legislators, to decide fundamental issues of public policy for themselves. Judicial restraint is particularly appropriate where, as here, the claimed constitutional entitlement is of recent conception and challenges the most fundamental assumption about a basic social institution.
The majority has violated these principles. It simply does not have the right to erase, then recast, the age-old definition of marriage, as virtually all societies have understood it, in order to satisfy its own contemporary notions of equality and justice.
I'm afraid that -- much as it pains me to say that a judge got something right for a change -- Baxter has done exactly that, providing a powerful rejection and rebuttal of the majority's basis for redefining marriage.
I also suspect this will prove a Phyrric victory for those in favor of "gay marriage," serving to galvanize conservative voters otherwise disgusted by the GOP and its candidates, giving them a reason to head to the voting booth, to vote for the California Constitutional Amendment limiting "marriage" to a man and a woman -- as well as giving McCain a nationwide boost on the activist judges issue alone.
Bravo!
And so we come to yet another legal concept: the law of unintended consequences. This could be just what it takes to keep a Republican in the White House.
Heh.
Posted by Mike Lief at May 19, 2008 06:09 PM
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Comments
And it may lead to an effort to recall the justices who signed the majority decision. The rise of the imperial judiciary leaves the public with little other alternative than to fire offending judges, assuming that they value the right of self government. A recall was unsuccessful with Rose Bird, but the issue with this decision would be much easier to explain to the public than was her diffuse, but overwhelmingly liberal activist record.
Posted by: ecmarm at May 20, 2008 05:47 AM
Judicial arrogance, the Imperial Judiciary, hubris . . . label it as you will. It adds up to possible recalls this year and probable contested retention elections in 2010. And need it be said, California conservatives will have a reason to go to the polls in November. I hope the California Supremes DO achieve their goal of re-instating themselves as the most influential state court in the nation, by galvanizing a wave of advocacy for candidates who support judicial restraint and traditional values. The last time the California Supremes went this far out on the activist limb, it ended badly for three of them. May history repeat itself in a state with no more collective sense of history than a swarm of gnats.
Posted by: The Little Coach at May 20, 2008 07:10 AM
When your argument forces you to depend on the "keen" intellect of Marvin Baxter, you should seriously re-examine your position. I won't dispute that we have lots of what the right calls activist judges; I do dispute it, but that is not my point here. My only point here is that this decision is not an example of judicial activism gone amuck. This is an example of the CA Supremes, who I generally find to be more detestable than even the US Supremes, saying that the way that the voters chose to amend a CA Statute resulted in an unconstitutional law. They plainly would not have ruled as they did if the CA electorate had amended the CA Constitution, which they may well do in November.
The decision breaks no new ground for California jurisprudence. We already have protected sexual orientation as a suspect class in California. This decision merely says that by calling marriage between two people of the same sex something other than "marriage," you stigmatize it in a way that the CA Constitution does not currently permit. Further the court holds that not all the same rights afforded a heterosexual married couple are afforded to gays and lesbians in a domestic partnership and that the CA Constitution does not currently permit that either.
Baxter's assertions that the majority has established a new constitutional right demonstrates quite clearly that either he didn't or can't read the majority's opinion. They do no such thing. I urge you to read the opinion, and feel free to skim the first 70 pages or so. Like it or dislike it, the opinion is groundbreaking only in the eyes of the media. From a jurisprudential sense it is a weak, feckless, and unimportant decisions that will neither stand the test of time nor influence any other court in the country to follow California. It is a case of narrow, technical statutory interpretation that can easily be overcome by amending California's constitution. And it probably will be so eliminated.
I'm surprised at your glee over the possible unintended consequence of this resulting in McCain getting elected come November. Has he whored himself enough to the right that you've already come around to supporting him?
As for The Little Coach's and ecmarm's comments that a recall drive may now be mounted against these justices, allow me to say only this, yeah, right, good luck with that. Ron George has been the right's and big business's bitch in California for the last 20 years. They'd fight to the death, any attempt to get rid of him. California's taste for sweeping the judiciary clean extends only to those that big business wants out. Bird, Grodin, and Reynoso got kicked out in 1987 because big business mounted a recall drive against them. The public sunk its teeth into their death penalty decisions, but it wasn't pro-death penalty groups (cops, prosecutors, or anyone else like that) who supported the recall; it was the business community who despised the court's anti-business views, not their criminal justice system views.
Posted by: BullButtz at May 21, 2008 05:07 PM
Oh, and by the way, I have always been impressed by your bloviating. It may be your most endearing quality, though I admittedly have a fairly short list from which to choose.
Posted by: BullButtz at May 21, 2008 05:10 PM
BullButtz, you evidently do not recall the events of 1986 very well.
You are correct that California business people had no love for Bird, Grodin and Reynoso, but business had very little to do with the campaign to vote them out in the retention election.
The election was not a recall - that was tried with Bird in '80 or '81 and it failed, badly. There was no further election activity against the justices until the election of 1986, when they came up in the normal cycle for an up or down vote on retention.
There was not much money at all raised in the '86 campaign, as these things go. The justices' arrogant disregard for clearly written law and their penchant for doing what the present Supreme Court just did in the marriage cases that is, substituting their own will for that of the people, is what made the difference.
You are also incorrect about their opposition. The lead was taken by crime victims' groups, prosecutors and police officers. Sure, business people were on board, but they were hardly the driving force. Enough money was raised and spent to get the message out to the public about the disregard these judges had for simple criminal laws - the laws concerning capital murder being the centerpiece - to rouse the public against them. Even though the press was very sympathetic to the justices, they could not not report the controversy. It reached critical mass and the rest is history, as they say.
You are correct that Chief Justice George would enjoy much greater support now than did Bird or the others in 1986. Whether this would matter to religious and other conservatives who are tired of their Supreme Court judges playing societal engineers is hard to say.
When you read the decision, it is plain that it is based on a very strained equal protection analysis. The desired result dictated the "analysis," which was really just cover. The opinion is so long because the reasoning is so tortured. Were such a holding grounded in real law, the opinion could have, and would have, been succinct. Baxter is quite right, despite your comments.
Posted by: ecmarm at May 22, 2008 07:46 PM
If BullButz needs any further reminders of how wrong his history is, or of the significance of a single hot issue . . . The "No On Bird" campaign also targeted Stanley Mosk, and would have knocked him out too if he had not finally found a death penalty he could affirm. After Mosk voted to affirm one death penalty, the campaign withdrew its opposition and he was retained. Mosk was a pragmatic man . . . just one little sell-out of his principles and he avoided the campaign's fire.
Posted by: The Little Coach at May 23, 2008 08:12 AM
Coach, you are quite right. I had forgotten about the situation with Justice Mosk. Advancing age, I guess.
Posted by: ecmarm at May 23, 2008 06:29 PM
Perhaps I was not clear enough in my prior statement.
I said:
"California's taste for sweeping the judiciary clean extends only to those that big business wants out. Bird, Grodin, and Reynoso got kicked out in 1987 because big business mounted a recall drive against them. The public sunk its teeth into their death penalty decisions, but it wasn't pro-death penalty groups (cops, prosecutors, or anyone else like that) who supported the recall; it was the business community who despised the court's anti-business views, not their criminal justice system views."
What I meant by "supported the recall" was funded the recall. Groups like the Jarvis/Gann Taxpayer groups, agri-business, etc were the groups who funded the effort. Again, the public sunk its teeth into the death penalty/soft on crime issues, but that's not what funded the effort.
I was actively involved in the NoCal effort to retain the justices and I need no reminders of how wrong my history is; I lived it and I remember it as it was.
I don't doubt that big business used the death penalty as a hot-button issue to coalesce the public into their opposition, but that was not their issue; it was their strategy.
"THE RISE AND FALL OF ROSE BIRD
A Career Killed by the Death Penalty
by Patrick K. Brown
M.A. Program, California State University, Fullerton
...
A review of the books and articles cited in this paper shows that those who place the blame for Bird’s defeat on funding by agri-business, the taxpayer revolt, and big banking, and claim that such groups hid behind the death penalty issue, while correct in their analysis, nonetheless seem to be apologists for Bird. What is evident is that the electorate made their decision about Bird based on her rulings in death penalty cases. Because big business successfully hid behind the issue, the electorate was not aware of their presence or motive. What they clearly believed was that California had a chief justice who had a specific philosophical opposition to the death penalty. Further, that she would not, in fact could not, ever vote to uphold a death sentence and was therefore out of step with their beliefs. Voters in 1986 did not care that Rose Bird was a woman; did not care that Rose Bird was an enemy of big farmers; did not care that Rose Bird was not a supporter of property tax reform. They only knew that, from their perspective, Rose Bird did not care about victims of crime."
Posted by: BullButtz at May 23, 2008 08:41 PM