Some defenders of the California Supreme Court's same-sex marriage decision have argued that it's actually consistent with the democratic process, because the California legislature had twice enacted same-sex marriage, and the Governor vetoed the bills on the grounds that the California Supreme Court should decide the matter. I heard this from another panelist on a KQED-FM radio show I was just on; you can also see something similar at Lawyers, Guns and Money, and elsewhere.
I think it's a mistake to ascribe much significance to these vetoed bills. Under California law, the California Legislature has no authority to by itself reverse -- even with the Governor's approval -- an initiative statute, such as the California ban on same-sex marriage (enacted in 2000); reversing such an initiative statute through the legislative process requires a subsequent popular vote. The legislature may at most place the amendment on the ballot.
Now if the California Supreme Court is right that the initiative statute violates the California Constitution, then only a state constitutional amendment (which will likely be on the November ballot) can change that. But there's no doubt that it is the Court that made this decision, overturning the 61.4%-38.6% 2000 vote on the matter. It is that 2000 vote that's the only authoritative non-judicial statement on the matter. The Legislature had no power to itself change this statement, even had the Governor cooperated.
Incidentally, my sense is that this explains the Governor's veto statement that he wanted to see the Court's views on the matter: If the Court had concluded that the 2000 initiative statute was constitutionally permissible, then the Legislature and the Governor would have had no power to simply enact same-sex marriage; they would have had to do so through a statute that called for a popular vote on the subject.
Related Posts (on one page):
- The Countermajoritarian Difficulty as to State Constitutions vs. the Federal Constitution:
- The California Legislature's Enactment of Same-Sex Marriage:
- "Did the California Supreme Court Just Do John McCain an Inadvertent Favor?"
- Congratulations to California Same-Sex Married Couples:
- The Slippery Slope to Same-Sex Marriage:
- California Supreme Court Holds That California Must Recognize Same-Sex Marriage:
But I think the vetoed bills are relevant to the political calculus. The legislature has twice passed gay marriage laws, and intervening elections have given the voters a chance to repudiate their legislators. Thus, on some level, unless the electoral system is completely broken, the voters have decided that this issue just isn't important enough to kick out their elected representatives over it.
Cornellian, the state supreme court decisively rejected that argument in its opinion. The discussion can be found on pages 29-35.
Should that read "gloryhole"?
(I'm just kidding Randy R.)
Look, democratic legitimacy is extremely complicated. I am quite willing to concede that the 2000 vote has plenty of democratic significance. But it isn't the whole story, given that the legislators who voted for gay marriage weren't voted out of office, the governor who supported gay marriage (at least by court decision) wasn't voted out of office, and, of course, because homophobia correlates with age in the electorate and because people have seen that the sky doesn't fall when gay marriage is legalized, every year the electorate becomes somewhat more supportive of gay rights and gay marriage. Finally, the judges on the California Supreme Court are themselves subject to retention elections.
What I can't stand is folks (especially those living outside of California) declaring that because this was a court decision it has no democratic legitimacy at all. There is actually plenty of support for gay marriage in California (as there is in Massachusetts); if the public decides this is nonetheless beyond the pale, they have remedies both through the initiative process and by voting out legislators and justices who supported it.
See this post for more:
http://dilan.blogspot.com/2008/
05/gay-marriage-ruling-probably-not-ideal.html
It's only the mobocracy that isn't in line.
What irks me is not people making that argument, it is people who (a) haven't read the decision and/or (b) are no more familiar with the precedents in question than I am, asserting that the decision is clearly illegitimate judicial overreach, just because it overturned a popularly supported statute. ISTM that the question "was this a legitimate decision" can't reasonably be answered without reference to the text of the decision and the precedents upon which it relies.
There are basically three kinds of ballot propositions: (1) a referendum, which happens when the legislature passes a law and the voters seek to overturn it; (2) an initiative statute, which happens when the voters are passing a law of their own; (3) an initiative constitutional amendment, which happens when voters are seeking to amend the state constitution.
Except for ballot propositions placed on the ballot by the legislature, which I'm ignoring for purposes of this discussion, ballot propositions qualify for the ballot by petition: the promoters of the initiative must gather a certain number of signatures (of registered voters) within a set period of time.
The number of signatures needed to qualify an initiative constitutional amendment for the ballot is *higher* than the number needed to qualify an initiative statute for the ballot. Since signature gathering is an expensive process, this means it's cheaper and easier to get an initiative statute on the ballot than it is to get an initiative constitutional amendment on the ballot.
No. Yes. Because initiatives which amend the state constitution demand that the proponents jump through slightly higher hoops.
The court flatly rejected this argument yesterday. Slip op. at 28-32.
Most of the debate about the democratic legitimacy of the decision -- pro and con -- is, to me, just self-interested partisan screaming. The only useful thing that can be said about it is Dilan's remark: it's extremely complicated. I yearn for actual analysis of the court's legal reasoning, which I found quite good in some places and quite weak in others.
I think you're being a bit credulous as to the Governor's motives. It seems to me more likely that he simply wanted to cater to the preference of his Republican base by vetoing the bill while avoiding the appearance of anti-gay bias that would alienate moderate Democrats and independents. It was an act of political cowardice, not one of respect for the CA Supreme Court.
That's a somewhat bizarre characterization of what happened here.
The court did not override the Governor's veto. The legislation the Governor vetoed is dead.
In response to a lawsuit from people saying they should be awarded marriage licenses, the court ruled that a statutory initiative conflicted with the state constitution.
Whether you think the court was correct or not, to characterize it as "overriding the Governor's veto" is to betray a complete lack of familiarity with the procedural process of this case, not to mention of the process of legislation (in general).
It seems to me that even with this court decision, this significant anti-heterosexual anti-marriage bias persists.
The whole premise of initiative and referendum is that sometimes, the legislature becomes beholden to special interests and will not enact the will of the people on a certain issue. Voting out a legislator is a major, blunt instrument response to the voters disagreeing with the legislatures actions (or inactions) on a specific issue. It would be easier to enact specific legislation through the initiative process, than vote out a number of legislators that may be fine in the voters eyes on other issues.
Prof. Volokh is correct that the California Legislature could not overturn Prop. 22 by legislation. The California Supreme Court indirectly allowed that by relying on legislative enactments as informing its understanding of the constitutional provisions to strike down Prop 22. The Court should have allowed the uneasy public policy compromise come to by the Legislature and the people using the initiative process, rather than upset it with a dubious interpretation of the state Constitution.
Has anyone asked Obama what he thinks of this decision or whether he would intend to appoint any of the justices who signed it to the federal bench?
Yes Jon, but the "mobocracy" in California can also act as check on a "fanatical" Legislature, such as the one which refused to act on property tax relief in the 1970's.
All checks and balances, my friend.
Here is the main program description page with a link to the audio in MP3 downloadable file or RealMedia stream. The program notes and audio links will scroll off this page in a few days.
Here is a direct link to the MP3 file.
...Robert West, I think you are wrong about the Gerrymandering in Ca being ineffectual. I think it has reduced the moderating effect of mixed districts where moderates were historically successful. I wouldn't be for reform until I heard what it was. The skewed system we have now is the result of "reform".
..As to Ca's initiative system being mobocracy. It originated from the days when the Sufferin' Pacific Railroad owned the legislature and could get anyone they wanted elected Governor. The mob took their state back. I think we need to do it again. Our court has forgotten that they are employees and have grown to think they control us. They weren't hired for that. They need a wood shampoo.
First, it was not clear until Thursday that the proposition passed in 2000 had the effect of requiring the legislature or the governor to submit all SSM legislation to the people. This is because there are two statutory provisions under CA law governing who can get married and the proposition only changed one of them. The one it changed appeared to many people to be applicable only to out of state SSM marriages because it directly followed another statutory section discussing out of state marriages and because much of the propaganda surrounding it was aimed at the specter of other states telling CA what it could do about SSM, and not at the issue of SSM directly. And it did not really make much sense that the proposition would have changed only one of the two statutory provisions if it was intended to stop all SSM, including in-state SSM. In any event, this is resolved now. However, prior to Thursday it is not clear why the governor could not have signed the legislation and then let the courts overturn it if they concluded that the 2000 proposition had banned all SSM. The legislation certainly was not obviously unconstitutional.
Second, even if the governor thought the legislation was unconstitutional, why not tell the legislature he will sign an identical law that was subject to ratification by the voters and therefore would avoid the constitutional issue? I don't follow his logic of punting it to the courts if he supports SSM, or of opposing a measure to overturn the court's decision afterward if he opposes SSM. I know people who favor SSM if adapted by the legislature and not if adapted by the courts, but other than Arnold, I know of know one who holds the opposite view.
Third, not all CA constitutional amendments can be passed by initiative. Some are so fundamental that they are considered revisions and have to be initiated by the legislature. Ultimately, it is up to the justices whether the measure that will likely be on the ballot in the fall to reverse the court's decision Thursday is an 'amendment' or a 'revision'. I discussed this in another thread, so I won't repeat myself here, except to note that if the justices want to keep their decision alive, I think all it would take is for them to find (which is not hard to foresee) that equal protection is part of the fundamental framework of CA government.
I don't see how that follows. The initiative says that "Only marriage between a man and a woman is valid of recognized in California."
It looks fairly clear to me that a marriage, not between a man and a woman, which was valid when it was entered into, would still not be recognized in California after the passage of such an initiative.
I think there's something to that, but I also think that it's overstated. The districts of the Bay Area would yield extremely liberal Democrats whether they were contorted or whether they followed compact geographic lines; the districts of the central valley would yield conservatives whether they were contorted or whether they followed compact geographic lines.
It would probably be *less extreme* than now; but there's very little reason to believe the legislature would (a) be significantly less liberal overall or (b) the bitter division between the liberals in the legislature and the conservatives in the legislature would be reduced.
The skewed system we have now is the result of "reform".
Odd. I'm not aware of any redistricting reform passing the ballot in the 20 years that I've been paying attention, and I'm pretty certain that currently there are no meaningful constraints on how the legislature can draft district boundaries. When did this reform occur, and what did it entail?
Did the CA Supreme Court only overturn Prop 22, or did they effectively rewrite Section 300 of the California Family Code? It seems clear to me that Prop 22 was redundant, and that in order to actually recognize same-sex marriages, California would need to revise the language of the legislation regarding marriage. This would require a vote by the CA legislature or the voting public to completely redefine marriage as it is currently understood in Division 3 of the California Family Code.
Does the Supreme Court have the ability to veto phrases within legal text, or only to rule entire sections unconstitutional?
As I tried to point out in an email before the show was cut off by a stupid pledge drive (just have some damn commercials already) your argument doesn't really make sense. A point I think you largely concede in your next post.
There are two possible sorts of meanings that "consistent with the democratic process" can have:
1) Established as the result of procedures legitimately adopted by the people of the state.
2) Established in a way that is responsive to the desires and priorities of the current populace.
Note that 2 is not the same thing as being a policy favored by a majority of the population. It's perfectly democratic for our representitives to engage in horse trading for things like the farm bill and glue together things like food stamps and agricultural aid even though neither might have majoritarian support on it's own. It's no less democratic when this happens implicitly as a result of politicians valuing passionate support more highly than indifferent opposition, i.e., bills a minority passionately supports are passed by the legislature as part of an implicit trade off where the members of the indifferent majority get more consideration on issues they really care about.
So now let's examine your argument and the argument that the action of the legislature shows the gay marriage decision to be consistent with the democratic process. Obviously the action of the legislature does nothing to show the decision is democratically consistent in sense 1. However, in terms of sense 1 the decision is obviously democratically consistent. The decision was released by the duly selected members of the supreme court who has the power to decide constitutional questions under the procedures democratically adopted by the voters. The only plausible argument that the decision is undemocratic in sense 1 is that it is horrendously wrongly decided but if you can show this the rest of the argument is superfluous.
The only useful charge of undemocraticness is that even if this decision was properly rendered as a procedural matter by the court which rendered a decision that wasn't totally absurd the court should have deferred to the people so our government would be more democratic in sense 2. Here then is why the legislature's attempt to pass a gay marriage bill is relevant. It's the best evidence we have that when we factor in people's overall preferences (not just their view on gay marriage) the populace would rather let the gays get married and get what they want on some other issue than spend the political capital to counter the fervent support by the GLBT supporters
Neither, really.
They ruled that Section 308.5 (the section changed by Prop 22) applied to all marriages, whether performed in-state or out-of-state. So therefore, since 308.5 was passed after 300, covers the same issues and can only be amended by initiative, the effect was to hold that 300 was superfluous and the harder-to-amend provisions of 308.5 were controlling. See In re Marriage Cases at pp. 22-36.
Then they struck down both Sections 300 and 308.5 as unconstitutional insofar as they limited marriage to members of the opposite sex. See In re Marriage Cases at pp. 118-119
Interesting. How will this affect the text of the legislation? Will it remain the same, with the understanding that we are now to apply all the provisions of Section 300(a) to same-sex couples as well, even though the text seems to forbid it? Or must the phrase in question ("between a man and a woman") be struck from the text somehow?
Is it only that all courts are now required to issue marriage licenses without regard for the gender(s) of those involved, or will this also affect those who solemnize marriage? Could someone realistically claim that this ruling forbids clergy from similar discrimination?
And if 50% + 1 equals mobocracy then we need to admit that a narrow 4-3 CA SC decision is the same thing, just smaller numbers.
Are you sure that it isn't? My office roommate at UC San Diego a few years ago wasquite pleased about the new recognition of Dpmestic Partnerships. She told me that she was quite pleased that her live-in boyfriend of long standing was finally covered by her UC medical benefits. Perhaps this is a University of California interpretation and not something that applies statewide to all employers.
The amendment processes listed in any constitution are the rules for the GOVERNMENT to follow. Theay are NOT the rules for the People. The process(es) listed in the constitution DO NOT bind the people because the people hold authority superior to their constitution.
The people of California, by voting for the law banning same sex marriage, amended the state constitution in the manner prescribed by the Declaration of Independence, i.e. the people altered or abolished their government.
The Court as servant to the people, holding its total authority from the people, erred in not understanding that the people of California altered their constitution and overrode any conflicting clauses in the the state constitution by way of the people's ultimate authority to change their government.
No law passed by the people can be held to be in conflict with existing law because the people always retain the authority to "alter or abolish" their government and that includes any and all laws.
Again MAYBE the courts need to reread Blackstone and get a clue as to who is in charge.
"For, whenever a question arises between the society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of the society itself; there is not upon earth any other tribunal to resort to.
Sir William Blackstone, Blackstone's Commentaries on the Laws of England, Book I, Chp3, pg.205/6"
It's time for the People of California to remove these judges. OF course their tenure is probably during "good behavior" but then the People are authorized to decide what constitutes "good behavior", the only ones so authorized.