"Mama take just a little bit from my heart"

Justice Kennard and "small" deviations from equality

The California Supreme Court held oral arguments today in the litigation challenging Proposition 8, which the voters approved to change the state constitution to strip away the right to marry from same-sex couples. It’s always perilous to read too much into the Justices’ questions. But one line of questioning by Justice Joyce Kennard suggests a possible misapprehension about the nature of the arguments against the validity of Proposition 8, which I hope does not ultimately lead her astray. Here’s my reasoning. (All quotations are from my notes from watching the webcast of the oral arguments and have not been verified against the archived footage.)

Shannon Minter, Legal Director of the National Center for Lesbian Rights, argued first on behalf of the challengers of Prop 8. Justice Kennard asked Mr. Minter: “Is it your argument in this proceeding that the passage of Proposition 8 also took away in addition to the label of ‘marriage’ the core of the substantive rights of marriage that the majority of this court outlined in the marriage cases last year? Continuing a similar theme, Justice Kennard questioned Raymond Marshall who argued for a variety of civil rights groups opposed to Proposition 8: “Given the precedential values that have been decided by this Court in previous decisions, how do you distinguish them here where the people left in place most of what this Court declared to be proper under the California constitution?” And: “What about the argument that what we are dealing with in this particular case is a narrow exception to equal protection, by denying same-sex couples the label of ‘marriage,’ but leaving intact the substantive rights this Court established in the marriage cases last year? …. You haven’t eliminated or taken away equal protection.” And when Mr. Minter stepped up for rebuttal, Justice Kennard incredulously asked: “Is it still your view that the sky has fallen in as a result of Proposition 8 and gays and lesbians are left with nothing?”

One possible implication of these lines of questioning would be to suggest that Proposition 8 isn’t a revision if it only deprives same-sex couples of part of the right to marry and doesn’t wholly strip gay and lesbian people of all equal protection rights. But those positions are not being argued by any of the parties or amici in the case, and for good reason. Let me take them in order.

First, it would be a colossally bad move for the Court to embrace a standard that said a proposed constitutional change would count as a revision if but only if it takes away all benefit a group of people might get from a right but not if it takes away only a portion. Were that the rule, initiative drafters could always take care to preserve some application of the right they want to strip from a group and thereby bring it within the scope of the initiative-amendment power, rather than having to pursue the more deliberative and cumbersome revision process (which requires supermajority votes in each house of the state legislature). An all-or-nothing rule of this sort would be readily evaded and would defeat the point of the California constitution’s provision of different ways to make two different kinds of changes.

The argument could not really be salvaged by adopting a standard that says, a proposed constitutional change counts as an amendment (adoptable via initiative) if it takes away only a little bit of a constitutional right, but not if it takes away too much of the right. Balancing tests may be inevitable in constitutional law, but if the California Supreme Court thinks the doctrinal rules they adopt ought to give at least some guidance to voters and legislators, something less mushy than “I know it when I see it” (which was former U.S. Supreme Court Justice Potter Stewart’s unhelpful characterization of “obscenity,” a content-free standard that Justice Carlos Moreno quoted in today’s arguments).

Second, the observation that gay and lesbian people still enjoy some equal protection rights after Proposition 8 is not really responsive to the challengers’ argument. They contend that Prop 8 should be deemed a revision to the state constitution that could only originate in the legislature, not via petition-initiative the way Prop 8 was adopted. The reason they offer is that it strips away not just any right but a right that is “fundamental” in our state constitution (here, the right to marry), and that it takes that right away not just from any group but from a group (here, lesbigay persons) defined by a suspect classification (here, sexual orientation). By doing that, Prop 8 doubly undermines the historic role of the court and denies it the ability to enforce the principles of equality that are at the very foundation of the California constitution.

The challengers are not claiming that gay and lesbian people would currently enjoy no constitutional equality rights if Prop 8 is part of the constitution. If they were making that hyperbolic claim, then the assumptions of Kennard’s questions would be adequate rejoinder to the challengers’ argument.

The challenge to Proposition 8 instead rests on the very sensible contention that, if Proposition 8 is a permissible exercise of the amendment power, then the Court would have to include that any law which took away any right from any group of people would also have to be permissible, and what that means is that any possible equal protection holding of the state supreme court could be overruled by a bare majority of voters (after a petition got signatures from a mere 8% of those who voted in the last election for governor). And, as I believe Therese Stewart, arguing for the City and County of San Francisco put it, “a guarantee of equal protection that is changeable by a majority is no guarantee at all.

To understand why, first note that typically a “fundamental right” is the kind of right most carefully protected by the judiciary from governmental infringement. Last year the California Supreme Court held that the right to marry was fundamental. And the Court was clearly and explicitly talking about the right to enter the institution called “marriage” that different-sex couples were allowed to enter. Prop 8 takes that right away just from same-sex couples. Since fundamental rights are the most judicially protected rights, no other right would have a stronger claim on the Court. So, if a majority can do it with the right to marry, it can do it with any right.

Next bear in mind that discrimination against a group defined by a suspect classification (like a racial minority, or women, or lesbigay people) is subject to more powerful judicial scrutiny than any other form of discrimination. So if it’s okay to take away a fundamental right from such a group, as Prop 8 attempts, then a mere amendment passed by a bare majority of the electorate could take away a fundamental right from any group.

What the challengers are arguing, therefore, is that it’s not just the dignitary harm that Proposition 8 inflicts upon same-sex couples and their families that renders Prop 8 a revision. Rather, it is the principle that a decision upholding Prop 8 would have to embody: Any right may be taken away from any group by a mere amendment passed by a bare majority of voters, with no filter of legislative deliberation required (as would be the case for a proposed constitutional revision).

Dean Kenneth Starr, arguing for the official proponents of Proposition 8, did not shrink from that conclusion. He made clear that he thought there was no limit in the California constitution to what voters could do to strip away any rights from any group. That might be regrettable, but it’s just the constitution we have, he basically said.

Now, he did offer the Justices reassurance by arguing that the “backstop” or “failsafe” to prevent horrid occurrences from happening was the U.S. Constitution. But this argument is in tension with the long-held position that the rights guarantees of the California constitution are independent of the federal constitution. Our rights under the state constitution are to be interpreted as forces of their own, not dependent upon the federal constitution or the federal government. The point of our California constitution is to secure the blessings of liberty, which include the freedom to marry, as counsel for the challengers observed during argument today.

Let us hope that at least four members of the California Supreme Court remember that and do not shy away from their duty to preserve the foundational commitment to equality enshrined throughout the California Constitution. As Ms. Stewart reminded the Court, democracy can only lay claim to legitimacy if it embraces the commitment to equal protection. Proposition 8 attempts to erode that commitment, taking away the most judicially protected kind of right from a group subject to the highest level of judicial protection. The fact that it leaves other rights or other aspects of a right intact – for now – should not be enough to obscure the pernicious way it says to the Court, “no matter how strong your constitutional ruling, a bare majority can wipe it out with the most casual kind of constitutional change.”