pageok
pageok
pageok
Justice Moreno's Partial Dissent:

Justice Moreno argues that Prop. 8 is a revision, not an amendment, and therefore must be implemented through a legislative proposal or a constitutional convention, and not by initiative. His rationale is that "a transfer of the authority to protect the equal rights of a suspect class away from the judiciary to an electoral majority" is a "kind of change in the countermajoritarian nature of the equal protection clause" that "is the type of fundamental alteration that can be done only through a constitutional revision." And his arguments rests heavily on tradition: the courts' "traditional constitutional function of protecting persecuted minorities from the majority will," equal protection being "one of the core values upon which our state Constitution is founded," "the guarantee of equal treatment hat has pervaded the California Constitution since 1849," and the like.

But the trouble is that what constitutes equal rights, equal protection, and equal treatment -- and on the other side, "persecut[ion]" of minorities rather than legitimately different treatment of different kinds of behavior -- is not self-defining. Up until 2008, the California Constitution had not been read as treating the opposite-sex-only marriage rule as unconstitutional. Up until the 1990s, no state constitution in America had been. Certainly the drafters of the California Constitution to whose handiwork Justice Moreno appeals did not believe that opposite-sex-only marriage rules are unconstitutional. They had a different view of what constitutes a denial of equal rights than does Justice Moreno. Likewise, the voters who enacted Prop. 8 have a different view from Justice Moreno, and a view that is more in common with the truly traditional understanding of the substantive scope of equal protection.

Justice Moreno does acknowledge "that the right of gays and lesbians to marry in this state has only lately been recognized. But that belated recognition does not make the protection of those rights less important. Rather, that the right has only recently been acknowledged reflects an age-old prejudice that makes the safeguarding of that right by the judiciary all the more critical." But again the judgment of what constitutes "prejudice" and what constitutes a legitimate basis for different treatment is precisely what the voters and the Justices disagree about.

Now in our constitutional tradition, the courts are indeed the final expositors of a constitution in the sense that they can strike state statutes down as unconstitutional. If the legislature disagrees with the courts, or if the voters enacting mere statutes disagree with the courts, then the courts' interpretation of the constitution prevails. (The initiative process in California, and in some other states, lets voters enact proposals as statutes if they so wish, and with lower petition thresholds than those required for constitutional amendments.)

But when the voters who are trying to amend the Constitution take a different view of the proper scope of constitutional principles -- even very important principles such as equality -- and a different view of the line between "persecution" and proper recognition of what they see as real differences, then it seems to me that the view of the sovereign (the people), not of the sovereign's servants (the Justices), should prevail. And though the Constitution prescribes that the will prevails only when it uses certain channels, and the channel of the initiative is usable only for "amendments" rather than "revisions," I see no basis for importing the Justices' personal views of "equality" and "persecution" into the amendment/revision line. (The majority expresses that well, I think.)

Talk of constitutional provisions' being deliberately "countermajoritarian" strikes me as unhelpful here. First, the Constitution itself is both a countermajoritarian document and a majoritarian one; the initiative amendment provision is itself a designedly majoritarian feature. Second, the countermajoritarianism is itself a feature of certain constitutional provisions, which are just as subject to constitutional amendment, it seems to me, as are the majoritarian provisions.

And third, the question in such matters is always which majority should prevail -- the majority of Justices on the state supreme court, or the majority of voters voting on the constitutional amendment. When the majority of the Justices are interpreting the state constitution in order to evaluate statutory provisions, they can appeal not just to their own majority view but to the authority of the Constitution. But when the majority of the Justices disagrees with the views of voters who are trying to amend that very same Constitution, such an appeal no longer works. All the Justices can say is that they are protecting the rights of the minority, but the whole point of the dispute is that there's disagreement about what those rights should be.

That's why I think the majority's view was correct here. The revision/amendment line is indeed part of the state constitution, and it should be enforced. But there's no justification for defining the line by reference to the judges' own views of what equality really means, when the majority of the voters who are trying to amendment the constitution disagrees with majority of the judges.

Robert Greer (mail):
I don't know why California even has a constitution. What does it even mean to have a "constitution" that can be altered at the drop of a hat?
5.26.2009 5:47pm
Harold1995:
Amend it then.
5.26.2009 5:48pm
Robert Greer (mail):
That would illuminate the self-contradictory character of the initiative-constitutional-amendment process, wouldn't it? But, alas! that would certainly be a revision, not an amendment. Too bad.
5.26.2009 5:57pm
paul lukasiak (mail):
But again the judgment of what constitutes "prejudice" and what constitutes a legitimate basis for different treatment is precisely what the voters and the Justices disagree about.

in other words, it would have been OK with you if there had been a referendum process in the US in 1954, and we'd gone back to "Separate but Equal" because "voters and the Justices disagree about" what constitutes a "legitimate basis for different treatment."

The whole point of fundamental (or in California's case, "inalienable") rights is that they aren't subject to the whims of the majority. And when you are talking about a mere majority (50% plus 1) being able to "alienate" rights of citizens that exist in a state constitution, you are talking about a major change in the way that Constitutions function.
5.26.2009 6:01pm
hazemyth:
Thinking 'aloud' here...

The court had previously ruled that SSM is guaranteed under the EP clause, since SS couples were similarly situated. The new marriage ammendment restricts SS couples from marrying -- which means that either a) the new ammendment revises the guarantees of EP (as Moreno claims) or b) it somehow designates SS couples as not similarly situated.

Is the latter designation one that is generally (or can be) made (or unmade) by a voting public? After all, justices, in applying it, are supposed to utilize objective criteria. A majority need not do so.

Suspect class designations would be even more problematic, if they could be assigned or stripped by the majority. Obviously suspect classes exist, as such, because they suffer the majority's contempt.

In effect, if these designations are subject to majoritarian approval, they would be stripped of all meaning.

As an aside, while Prof. Volokh is clearly right that constitutions are both majoritarian and counter-majoritarian in function, this doesn't necessarily undermine Moreno's point that EP clauses are heavily counter-majoritarian in nature. They are, of course, subject to revision by a majority. Yet, supposedly, this is not what has been done.

It seems that, if the EP has not been revised, the CA constitution may stand in contradiction of itself, according to certain reasonable judicial methodologies.
5.26.2009 6:06pm
Perseus (mail):
What does it even mean to have a "constitution" that can be altered at the drop of a hat?

Great Britain has a constitution that may be altered "at the drop of a hat" of a simple majority of Parliament. Does that mean that it too lacks a real constitution?
5.26.2009 6:06pm
Robert Greer (mail):
Great Britain has a constitution that may be altered "at the drop of a hat" of a simple majority of Parliament. Does that mean that it too lacks a real constitution?

Sure. If the constitution isn't substantially more insulated from repeal than other legislation, then there's no reason to give it a special name.
5.26.2009 6:15pm
Perseus (mail):
The whole point of fundamental (or in California's case, "inalienable") rights is that they aren't subject to the whims of the majority. And when you are talking about a mere majority (50% plus 1) being able to "alienate" rights of citizens that exist in a state constitution,

As Prof. Volokh put it, "the trouble is that what constitutes equal rights, equal protection, and equal treatment -- and on the other side, "persecut[ion]" of minorities rather than legitimately different treatment of different kinds of behavior -- is not self-defining." And so the question is: who gets to define them? A bare majority of justices (4 out of 7) or a bare majority of the people (50%+1)? Why should a bare majority of justices necessarily prevail? What if a bare majority of the Court had ruled that same sex marriage violated natural law and therefore could never be permitted?
5.26.2009 6:23pm
hazemyth:
These are all valid questions (though I don't think 'natural' law is the law in question).

I guess I'm bothered by the question that has gone unasked: How do we protect minorities from the animus of the majority, if the majority gets to define what's protected?

Admittedly, this is a deeply existential question of democracy, so I'm asking it somewhat rhetorically.
5.26.2009 6:29pm
ShelbyC:

I guess I'm bothered by the question that has gone unasked: How do we protect minorities from the animus of the majority, if the majority gets to define what's protected?


The protection of minorities by the federal judiciary is largely an un-intended side-effect of the judicial process. The main function of Constitutions is to protect the majority.
5.26.2009 6:43pm
Robert Greer (mail):
Good question. I'd opt for the majority of justices, because the general electorate doesn't have to apply anything like judicial review. If "the sovereign" has difficultly explicating the compelling government interest at stake in treating gays differently, it's probably because it doesn't have a justifiable reason to do so. There's ample historical evidence to suggest that the courts are more likely to uphold minority rights than the electorate at large, and I think judicial review explains why.
5.26.2009 6:44pm
1L With Exceptionally Low Grades:
I believe you are missing the greater point that Moreno made.

The existence of the revision/amendment distinction implicates the existence of two separate standards that must be met before either are applied to the CA Constitution.

From this, Moreno infers, correctly in my view, that (1) the question of what the modification-type-to-standard mapping is is within the capabilities and responsibilities of the Justices (because a question that is so nuanced and so relevant to their primary responsibility of interpreting and applying the CA Constitution is not better suited for any other body -- indeed, making such determinations is a necessary consequence of doing their primary job correctly and responsibly) and (2) in making such determinations, if the change involves the possibility of a suspect class being stripped of a right that is reasonably arguably fundamental, the change, unless there exists are compelling reason not to, ought to be held to the higher standard (here, a standard higher than a bare majority of voters).

I find Moreno's reasoning more persuasive that Volokh's.

Why bother with the distinction if there is no practical difference between the two? If a minority's fundamental rights can be stripped away from it, even if it is done indirectly either by labeling the right non-fundamental or by labeling the class non-suspect, using the lower standard then the existence of separate standards serves no purpose and the intelligence of the drafters of the Constitution has been insulted.

Peresus: a bare majority of Justices is preferable because (1) their job is to properly interpret and apply the CA Constitution and (2) part of that job involves applying the CA Constitution, as the Constitution may require them to do, even when doing so offends or undermines a bare majority of voters.

Voters, unlike Justices, are not obligated by law nor responsible for properly applying the CA Constitution. Therefore, because adherence to the CA Constitution is neither incentivized (and because of the work of several religious organizations, here it was disincentivized) nor required, it is more likely that a bare majority of voters are worse than a bare majority of Justices when it comes to applying the CA Constitution.
5.26.2009 7:11pm
Harold1995:

I find Moreno's reasoning more persuasive that Volokh's.


Could that be why you are a 1L With Exceptionally Low Grades? ;)
5.26.2009 7:19pm
1L With Exceptionally Low Grades:
No, but that could be why Moreno's opinion could be legally binding and Volokh is in Academia ;)
5.26.2009 7:24pm
ShelbyC:

No, but that could be why Moreno's opinion could be legally binding and Volokh is in Academia


Uh, are the other 6 Justices in Academia?
5.26.2009 7:36pm
ReaderY:
One has to remember that for more than a century and a half, slaveholders and segregationists presented themselves, their "peculiar" institutions, and their lifestyle as a persecuted minority entitled to constitutional protection. Indeed, much of the concepts and even vocabulary currently used today to argue for constitutional protection for various "peculiar" institutions and lifestyle choices, was invented by slaveholders for the specific purpose of protecting slavery from legislative intrustion.

A century and a half ago many judges were every bit as certainty that people opposed to slavery were nothing but religious zealots acting out of nothing but hate, every bit as certain that justice and progress were on the side of protecting slaveholders' right to coexist unmeddled with, every bit as certain that slavery was not a voluntary choice but part of the inherent order of things, as judges today are certain about today's claimants to the mantle of judicial lifestyle protection.

The slavery experience alone dictates caution for judicial exuberance about these sorts of claims and attempts to associate such exuberance with the constitution.

Some people like to work with people of the same sex, others to play golf, others to sleep. So far as the constitution is concerned, all three have equal rights under the law. For the judiciary to get into its head that people who happen to like to work with those of the same sex are evil, responsible for the world's problems, deserving of punishment, and unentitled to the same equal protection of the laws as people who happen to like to sleep with the same sex, while people who like to sleep with members of the same sex are somehow more equal than those who merely happen to prefer a different set of homosexual activities, is to use the constitution and the judicial office as a weapon for bestowing personal favor and personal vindictiveness.

Currently, people are deeply emotionally attached to the idea that prefering to work with the ones own sex is evil and harmful while preferring to sleep with them causes no harm. Perhaps some preferences inevitably lead to castes systems and others don't. Perhaps the momentary association with certain types of preferences with caste-system problems was an historical anomaly and future generations will think us perverse and silly to keep blowing the elephant whistle of gender diversity long after the gender elephant went away and society could long since easily accommodate a few same-gender activities and establishments for the benefit of people really feeling they need them without any real harm to scoiety as a whole. Time will tell.

But it is not for judges to make these calls. States can regulate institutional gender diversity in the domestic sphere to the same degree, and for the same reasons, the federal government can regulate it in the sphere of interstate commerce. The states can rationally make gender diversity a goal for the institutions they regulate to the same extent, and for the same reasons, that the federal government can rationally do so in the commercial sphere.

If something would be a social problem if the entire society did it -- and an entire society in which men had sex for pleasure only with men and used woman for reproduction has been and would be as big a problem as an entire society in which men hired only men into economic positions -- then society is permitted to ban the entire thing as a prophylactic against the possibility of its once again taking the entire society over. It doesn't matter if the judiciary thinks the elephant has long gone and its safe to stop blowing the elephant whistle, indeed silly not to stop blowing it. It's not the judiciary's call. So far as the constitution is concerned, the affair is the legislature's call.

Perhaps future generations will have no problem with occassional same-gender vocational establishments and people who prefer working in a same-gender environment and find that only in such an environment can they maximize their potential and find meaning and joy in their work. Perhaps future generations will enact laws to protect such people against a majority convinced, based on past experience, that such conduct is immoral and leads to injuring others and society through diminishing others' equal chance to seek vocational partners. But until they do, it is not for the judiciary to declare the public's past experience irrational and strike down the nation's gender discrimination laws as an unconstitutional violation of the equal protection rights of those who prefer a same-gender vocational environment.

Same here.

It seems obvious to us what's right and what's wrong. But real rationality begins with the realization that things aren't actually as certain as they seem.
5.26.2009 8:55pm
wagnert in atlanta (mail):
It seems to me that a state would have to think long and hard to create a constitutional provision with more potential for mischief that this amendment/revision distinction. Does any other state divide changes to its constitution into two classes with different approval mechanisims?
5.26.2009 10:14pm
Stephen Clark (mail):
Eugene's desperate grasping at straws to defend the majority opinion remains as unpersuasive as ever.

For example, he attacks the idea of equal marriage rights for gays as a novelty because the California Supreme Court had not previously recognized the right. He conveniently ignores the fact, however, that before 2008 the California Supreme Court had never been asked whether the denial was consistent with equal protection. With increasingly limited exceptions, the law does not treat such decisions as only prospective. When the California Supreme Court ruled last year, it was determining what equal protection had always meant, even that particular issue had previously been unadjudicated by that court.

What truly underlies every one of Eugene's propagandistic posts on this decision is one simple idea: His blind honoring of ad hoc, uncritical, non-deliberative mob rule as the highest political value. Yet he absolutely refuses to look at that process squarely and defend it as it actually exists. He prefers instead to honor it through the haze of the nice-sounding concept of "popular sovereignty," which he strips from its own traditional meaning. "Popoular sovereignty" has traditionally meant the expression of the will of the people through deliberative conventions. The nation's framers believed New England-style direct democracy (town meetings) could not work on a regional scale because they would not be sufficiently deliberative. California's 20th-century progressives disagreed, naively in my view. Eugene refuses to acknowledge this issue because it would require him to question California's vaunted initiative process, to which he clings with the force of a religious obligation. The irony is that he will probably still cling to that faith when he loses public services because California's voters have bankrupted their state through ad hoc, uncritical, non-deliberative mob rule.
5.27.2009 10:18am
David Schwartz (mail):
But when the voters who are trying to amend the Constitution take a different view of the proper scope of constitutional principles -- even very important principles such as equality -- and a different view of the line between "persecution" and proper recognition of what they see as real differences, then it seems to me that the view of the sovereign (the people), not of the sovereign's servants (the Justices), should prevail.
This "what if" scenario is not even remotely about what happens in this particular instance. At least, there is no evidence that this is what happened, and it seems very hard to believe that this is so.

For example, if this was so, why doesn't Proposition 8 contain any language to that effect? It is almost certain that had Proposition 8 actually said what people claim it means, it would not have passed.
5.27.2009 11:58am
1L With Exceptionally Low Grades:
ShelbyC: Volokh's argument is neither (1) precisely what the other 6 justices held nor (2) the reason why, even if it was precisely what they held, it has legal effect.

The implication in the comments above yours was that, because I find Moreno's reasoning more persuasive that Volokh's, my grades are exceptionally low. From that implication I am supposed to conclude that thinking like Moreno thinks is indicative of some kind of defect in thought.

If that were the case, however, then why is it that the person with a defect in thought can make legally binding opinions (he's on SCOCA) while the person while allegedly superior though cannot?

Let me know if you need more things spelled out for you.
5.27.2009 12:01pm
David Schwartz (mail):
That's why I think the majority's view was correct here. The revision/amendment line is indeed part of the state constitution, and it should be enforced. But there's no justification for defining the line by reference to the judges' own views of what equality really means, when the majority of the voters who are trying to amendment the constitution disagrees with majority of the judges.
The justification is that this is the whole point of having a Constitution in the first place. What's the point in having a Constitution if a majority of the moment can take away equality under the law from a disfavored minority?
5.28.2009 7:59pm
David Schwartz (mail):
And so the question is: who gets to define them? A bare majority of justices (4 out of 7) or a bare majority of the people (50%+1)? Why should a bare majority of justices necessarily prevail? What if a bare majority of the Court had ruled that same sex marriage violated natural law and therefore could never be permitted?
In an ideal world, a bare majority of justices could "add rights" and a supermajority would be needed to take them away. If you know of a better system, feel free to suggest it.

But whatever the right way is, a majority of the moment being able to take fundamental rights away from a suspect class isn't it.
5.28.2009 8:02pm

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.