The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
–West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), quoted in In re Marriage Cases.
Yesterday, California Attorney General (and former governor) Jerry Brown announced that his office now officially recommends that the California Supreme Court declare Proposition 8 unconstitutional.
I’ve perused the brief (at 111 pages, that’s all I’m going to do), and I have to say, I’m somewhat underwhlemed. (Of course, any gay-friendly effort by Brown is welcome. I really am trying not to look a gift horse in the mouth.)
The key points:
–Brown actually rejects the “revision versus amendment” approach that opponents of Proposition 8 are using as their primary argument. I suspect, and hope, that this is grounded in legal pragmatism rather than in a bona fide belief that Proposition 8 is not really a revision. As I noted previously, the precedent on this question is sparse, old and to some extent problematic.
–Neither does Brown embrace the “separation of powers” argument against Prop 8 (i.e., that defining and interpreting “equal protection” is the exclusive prerogative of the courts), and that the ballot initiative process, which is legislative in nature, cannot extend to this power.
–Instead, Brown invokes an entirely new argument against Prop 8 (well, new to everyone except libertarians):
If the initiative process were to encompass the unlimited power to abrogate fundamental rights, article I, section 1, would be stripped of all meaning. For the Constitution to declare to declare a right inalienable, and at the same time leave the Legislature unlimited power over it, would be a contradiction in terms, an idle provision, proving that a Constitution was a mere parchment barrier, insufficient to protect the citizen, delusive and visionary, and the practical result of which would be to destroy, not conserve, the rights in vainly presumed to protect. [Internal quotation omitted.]
Stated differently: Inalienable means inalienable. Some things are simply never put to a vote. No ifs, ands or buts.
And that impermeable barrier extends, Brown argues, to the initiative process:
The point of the initiative power was to enable the People to circumvent the Legislature, not to invest the voters with a power that the Legislature itself did not possess. [Emphasis in original.]
In an interesting twist, Brown uses the materials submitted by Prop 8 supporters to reinforce this view: The ballot pamphlet read: “Proposition 8 DOES NOT take away any of those rights…” Well, now Prop 8 does take away rights, yet those rights are inalienable. Hence Prop 8 cannot stand, etc.
The lofty Lockean libertarianism that Brown invokes in his brief reads well in the abstract (i.e., outside the litigation at issue), but one wonders why he is so reluctant to relate it back to the revision-amendment approach. He’s basically saying, like the rest of us, “If you take Proposition 8 at face value and follow it to its logical conclusion, then the entire counter-majoritarian raison d’etre of a constitution and bill of rights collapses. That simply cannot be done by a majority vote. (Indeed, one could infer that Brown is suggesting that it could not even be done by revision. But why overreach like that?)
If I were Kenneth Starr (in the sense of, “if I were as insolent and snarky as Kenneth Starr is”), then I would simply respond with something like this: “What the Attorney General is apparently suggesting is that the California Constitution — is unconstitutional. That simply cannot be right.”
Stay tuned…
More thoughts at Hunter of Justice, Leonard Link.
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Meanwhile, Brown argues, very persuasively in my opinion, that Proposition 8 cannot void those same-sex marriages already entered into in California. It apparently is well-settled law in California that an amendment to a law (especially one after a court ruling interpreting that law) can never dictate what the law meant, only what it means. That, coupled with the express lack of any claim to retroactivity in the wording of Prop 8 itself (not to mention the due process and “impairment of contracts” issues that would arise if Prop 8 were deemed retroactive), essentially precludes any viable claim that the marriages could be voided. Works for me.
6 responses so far ↓
Link Mark // Dec 20, 2008 at 7:44 pm
I haven't been following the legal issues here as closely as I would like, but it almost seems to me that an effective legal strategy for the anti-8 groups would be to concede the retroactivity issue. While I know this is extremely risky and the fallout would be devastating if it failed, an amendment that retroactively stripped citizens of their rights would seem to be the absolute epitome of a 'revision' as opposed to an amendment. An amendment that only does so prospectively would seem to be a much closer and more difficult case.
But I'm not at all familiar with the intricacies of California constitutional law, so this is all speculation.
Link California Attorney General Weighs in on Proposition 8 // Dec 21, 2008 at 11:27 am
[...] More analysis of the Brown brief may be found at Mr. Esquire's site. [...]
Link Tom Carter // Dec 21, 2008 at 1:24 pm
Not being gay, and being a quasi-libertarian Democrat with some Republican leanings, I tend to think that government should stay out of peoples' lives unless there's an essential purpose involved. I agree that a right is a right and that inalienable means inalienable.
I don't get exercised about the issue of gay marriage because, I suppose, I don't have a horse in that particular race. I do get exercised about the invention of new "rights" every time someone's ox gets gored. Roe v. Wade is a good example. The Court acknowledged that there is no right of privacy in the Constitution, then proceeded to discover such a right hidden somewhere in the diaphanous penumbras of the Bill of Rights. I think that's where you have to go to find a right of marriage, regardless of the kind of marriage under discussion.
I'm reluctant to argue this point in a room with a lawyer present, but isn't it true that marriage per se is not mentioned in the Constitution? And that marriage is no more an issue of "life, liberty, and property" than other more physical examples of property that the state has long prohibited citizens to possess? The same is true for life and liberty–get convicted of certain crimes, and sometimes the state will lock you up forever or kill you; get born too late in the cycle, and sometimes you get your brains sucked out and your body dismembered, with no state objections. And so on.
Isn't it true that marriage is more a social institution accepted in common law than it is a right? In many settings, it's a religious practice validated by the state in the form of a contract, which is then legally enforceable. The fact is, the state (or in the U.S., states variously) restrict marriage in all kind of ways. You can't marry relatives of a certain degree, you can't marry non-human creatures, you can't have more than one spouse at a time, you're required to be tested for STDs and licensed before you can do it, you can't be divorced except in a manner prescribed by law, etc. So why is it, then, that in just one category, same-sex marriage, the state can't act?
I'm pro-choice, anti-death penalty, pro-gun control, and neutral about gay marriage. On all of these and many other issues, what's wrong with working within the political system that has served us well for so long? Keep the feds out of it, and let the people of the states decide what they want to permit and prohibit, within the limits specified by the Constitution.
[Kip replies: It never ceases to amaze me how willing some people are to embarrass themselves by so loudly proclaiming their ignorance of, or contempt for, both the plain text and the original meaning of the Ninth and Fourteenth Amendments.]
Link Tom Carter // Dec 21, 2008 at 2:00 pm
Kip, I knew I shouldn't get into an argument with a lawyer. But at the risk of further proclaiming my ignorance, I would point out the the Ninth Amendment simply says that rights not enumerated in the Constitution are retained by the people and not denied or disparaged. That leaves us with the question of what is a "right," I suppose. Apparently, these days a "right" is whatever someone wants where a particular issue is concerned. By definition, this is an extra-constitutional question, subject to interpretations of common law and western political philosophy.
As far as the Fourteenth Amendment is concerned, are you relying on "abridge the privileges or immunities of citizens," "due process," or "equal protection?" It wouldn't seem that denial of same-sex marriage any more violates these Fourteenth Amendment protections than, say, denial of marriage to a first cousin or denial of marriage to two or more spouses.
Having again embarrassed myself, shown my ignorance, and been contemptuous of the Constitution, I'll withdraw from the field. I'll leave with one observation, though–I'm not your problem. I have no moral or religious objection to gay marriage, and if I were a resident of California, I would have voted against Proposition 8.
Link Opinion Forum » Blog Archive » Gay Marriage // Dec 22, 2008 at 12:10 pm
[...] and control marriage in many ways. However, others disagree. For a good discussion, go to A Stitch in Haste and read the opinion of a lawyer. Regardless of the question of rights in some formal sense, [...]
Link Proposition 8 Attorneys Working through the Holidays | Brief Episode // Dec 24, 2008 at 9:45 pm
[...] Attorney General Brown surprised the Official Proponents of Proposition 8 on Friday with his assertion that fundamental rights cannot be abrogated through [...]