CA Supremes to Decide Perhaps by the End of the Week
This commentary is the opinion of the author and may not necessarily reflect that of other authors at Box Turtle Bulletin.
November 11th, 2008
The Sacramento Bee is reporting:
The California Supreme Court could rule as early as this week on a lawsuit that seeks to invalidate Proposition 8, court spokeswoman Lynn Holton said today.
The decision this week would be whether to put a stay on the State’s enforcement of Proposition 8 until lawsuits could be heard. The lawsuits are based on the argument that Proposition 8 did not amend the Constitution, but rather revised it to do something materially different than it did before. In other words, this was not a change in how something is done but rather a change in an underlying principle of the Constitution: that all citizens are equal and that gay citizens cannot be excluded from the institutions of the State.
If the court finds that removing a fundamental right of a suspect population is a revision rather than an amendment, the process is different. It requires a two-thirds vote of the legislature before submission to the public.
Some scholars are of opinion that this suit is unlikely to prevail. But there are a few indicators – purely from observation and guesswork – that I find encouraging.
First, this court did not find, as some have, that the State did not provide adequate reason for excluding same sex couples. Rather, they found that gay persons are a suspect class and that all laws written for the express purpose of excluding gay persons or couples are presumed to be in violation of the Constitution and can only pass strict scrutiny if they are narrowly tailored to be the least restrictive means for achieving a compelling governmental interest.
Proposition 8 did nothing to invalidate the strict scrutiny requirements or equal protections provisions of the Constitution. And no one pretends that Prop 8 achieved even a vague government interest and it was inarguably greatly restrictive and broadly tailored. Thus, the proposition leaves the State Constitution in a state of internal conflict. The reading of this document now is “Gays cannot be excluded. Gays are excluded.” Such language is clearly nonsensical.
It leaves the legal scholar with a document that is not much different from that painted on the side of the barn in the Animal Farm, “All animals are equal, but some animals are more equal than others”.
Next, I’m going to speculate on how a judiciary views precedent. Regardless of the conclusions of a court, jurists hold them as concluded. Those who found other evidence to be compelling do not disagree with whether the court has decided or whether such decisions must be followed.
This court found by a 4-3 vote that gays are subject to strict judicial scrutiny and that marriage is a fundamental right. But – and this is the important part – even the three dissenting judges will uphold the position that marriage is now a fundamental right and that gays are now a suspect class. Once the conclusion is reached, it has the force of law and the backing of both supporters and dissenters.
That voters disagree about the fundamental nature of the right to marriage is not of importance to the dissenting judges. That 52% of voters don’t want gays to have equality does not make the suspect status of gays any less real – even to the dissenters. Those who sought to overturn the decision did not disagree with a few judges, but rather with the right of the court to determine who is included in the protections of the constitution – something that all jurists take seriously. Or so I hope.
Finally, and this may seem counterintuitive, these are not liberal activist judges. They did not come into their position with a “gay agenda” and use creative reading to find a “special right”. Six of the seven judges are Republicans, and they found that gay people are equal out of their understanding of constitutional protections. Their decision was based on their reasoning and contrary to what may have been initial prejudices. They will not be easily swayed by Party, ideology, or the whims of political winds. If they found marriage to be a fundamental right, a 52% vote of the populace is unlikely to cause them to no longer see such a right.
Now I may be unduly optimistic, but I have reason to hope that the California Supreme Court will invalidate Proposition 8. And I have a suspicion that the vote will be greater than 4 to 3.