Thursday, May 28, 2009

Proposition 8 and Judicial Legitimacy

A couple of days ago, in reference to the California Supreme Court's recent Proposition 8 decision, I alluded to how that particular case is not all that interesting or relevant with respect to the substantive merits of marriage equality.

That is not to say that the case is not interesting. It certainly is. It is just interesting in a different, civics geek, sort of way. Let me explain. In 2008 (in In Re Marriage Cases), the California Supreme Court confronted the question of whether California's law limiting marriage to one man and one woman was constitutional. The Court concluded that the law unconstitutionally violated the privacy and due process rights of same-sex couples. In November 2008, the voters of California, in reaction to this decision, then voted to amend California's Constitution to limit marriage to one man and one woman. That is, Proposition 8 effectively changed the California Constitution to take away a previously-recognized constitutional right for same-sex couples to marry.

Thus, one of the key issues in Strauss v. Horton [PDF] (the "Proposition 8 case"), was whether this change to the California Constitution was a permissible change. Although it was not exactly framed in this way, a particularly interesting issue here was the power struggle between The People and The Courts. Specifically, given that the Court recognized a constitutional right for same-sex couples to marry, the Court examined the scope of The People's power to take that right away. Even though these events have occurred at the state level, as opposed to the federal level, at play here is a very old debate regarding separation of powers, majority rule, and the protection of minority rights.

Judicial review, the power of high courts to declare state acts to be unconstitutional, is often criticized as a usurpation of power that belongs to The People or to the legislature. Yet, critics of judicial review are often heard wailing only when so-called activist judges make disagreeable decisions. However, if you examine these claims for consistency, you will find that these critics are more often critiquing judicial review when judges make decisions that the critic disagrees with; rarely is the critic genuinely questioning the power of judicial review to exist at all.

Nonetheless, judicial review exists because we let it exist. Having neither "the purse" of the Legislative branch, nor "the sword" of the Executive, judicial opinions are enforced and complied with through the goodwill of The People and the two other branches of government. The judicial system works precisely because we the people continue to grant it legitimacy. There is much academic writing regarding judicial legitimacy but, in short:

"An institution is legitimate when it is perceived as having the right or the authority to make decisions and when its decisions are viewed as worthy of respect or obedience. Judicial legitimacy derives from the belief that judges are impartial and that their decisions are grounded in law, not ideology and politics."

With respect to the recent Proposition 8 case, I would fathom that most of those who voted for Prop 8 did not perceive the California Supreme Court as possessing the right or authority to invalidate Prop 8 and effectively "take away" the vote of those who had voted for Proposition 8. In reaction to the Prop 8 case, "marriage defenders" throughout the blogosphere have expressed relief that the California Court reaffirmed the right of The People to amend their Constitution. Furthermore, an unfortunate and ignorant knee-jerk sentiment exists among "marriage defenders" that any pro-LGBT court decision is grounded in ideology and politics, as opposed to law and constitutional principles. Had the Court in Strauss held Proposition 8 to be procedurally invalid, "marriage defenders" would have undoubtedly railed against both Judicial Tyranny Run Amok as well as Leftist Legislating From the Bench. The Court, in short, would have undermined its own legitimacy in these two ways from the perspective of at least half of California voters.

Finding that delicate balance between taking a courageous moral stand versus pleasing The Majority of the People is difficult, but necessary, to preserve the judiciary's legitimacy, legacy, and power. I suspect that many judges struggle with knowing what is right from a legal or analytical standpoint versus fearing to make an unpopular decision that could undermine the court's legitimacy. In her commentary regarding In re Marriage Cases, the case that declared California's one-man one-woman marriage law to be unconstitutional, attorney Manuela Albuquerque noted that on the merits of the issue the justices were "having analytical difficulty finding a conceptual rationale to uphold the opposite-sex restriction." Yet, concerned with predictable Activist Judge backlash, these same justices were "troubled at the prospect of striking it down."

Regardless of whether the justices in Strauss made the right or wrong decision here (and that point is arguable), I think that there was no way they could have not rendered the opinion they did. This case, I believe, was really about preserving the legitimacy of the judiciary and I genuinely wonder if the justices, with their ears to the ground hearing those Let the People Vote grumblings, had their minds made up prior to hearing a legal argument either way. Is preserving the judiciary of greater value than preserving constitutional rights? I am not sure. But if the courts are not to protect minority rights from a misled, bigoted, and/or ignorant majority, who or what entity will? At the same time, I do not believe that a court can consistently hand down unpopular decisions no matter how correct, moral, or just they are without sacrificing its legitimacy in some way.

What I do know is that the we need to remember that the question the court decided here was not whether The People should have taken away the right of same-sex couples to marry, but whether they legally could do so. As the Court noted:

"Our task in the present proceeding is not to determine whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution."

What I am sure of is that educated jurists regularly demolish "marriage defenders'" arguments in the courts and that the only thing "marriage defenders" have left going for them is their ever-diminishing numbers. This victory of theirs was really about a bunch of people taking away other people's rights Just Because They Could. Let them revel in the fact that their wins are so often the result of their leaders possessing the ability to spend millions of dollars convincing a bare majority of voters that marriage equality will cause Great Harm to society. Currently, 18,000 same-sex marriages remain legal in California. Professional "marriage defenders" who make their livings by telling everyone that same-sex marriage will lead to VeRy ScArY ThIngS will soon have the chance to back up their bold predictions with actual statistics. If they cannot put up, The People will tell them to shut up in the next ballot initiative. (Although, we will definitely be watching to see if California "marriage defenders" will resort to creating hate-group-produced dishonest "fact" sheets like the one produced in Massachusetts).

We will now sit back and see if these Great Harms come to fruition. Or not. I wonder if that half-win of ours worries professional "marriage defenders." Unlike such folks, I do not have a crystal ball that foretells the future. But, with the recent expansion of civil unions and marriage equality in other states combined with the fact that legal same-sex marriage has been No Big Deal in other states and countries, I have a hunch that the "marriage defenders'" most recent victory here may be one of their last ones. Knowing all this, let them savor it. Their days of taking away or restricting LGBT people's rights Just Because They Can are numbered.

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