Monday, November 24, 2008

Q & A: The Constitutional Conundrum of the Proposition 8 Litigation

Q. Can anti-Proposition 8 interests really get the California Supreme Court to invalidate a constitutional amendment?

A. They can try. That's how the Court ruled last week.

It looks like one "surface question" for the Court to consider is to what extent the constitutional change to ban same-sex marriage must be accomplished by "revision" rather than "amendment." The words sure do sound synonymous, but under the California constitution they are terms of art: an amendment requires only a two-thirds vote in both houses of the legislature, followed by an up-down majority ballot-initiative vote — as happened here. A revision requires the convening, after a two-thirds vote in both houses to proceed, of a constitutional convention.

Naturally, the California constitution doesn't say a heck of a lot (nothing, actually) about what sort of measures are appropriate for amendment and what sort ought to run the more rigorous procedural gantlet. But the general gist of the law on this point is that the little piddling changes are the stuff of amendments, whereas the grander "what are we doing to our government?" questions are appropriately resolved by revision.

The second "surface question" is whether it violates the constitutional separation of powers for the legislature to prepare a ballot initiative that would overrule a decision by the state's highest court on a matter of a fundamental right.

I talk of "surface questions" because these two questions, which the Court specifically designated as appropriate for judicial review, are really the constitutional "hooks" for considering the real matter at hand: what should happen when you have a general antidiscrimination principle in your constitution that, when applied in a specific case, results in a ruling that extends a right to a political minority, and then the legislature pushes through a plebiscite that results in the overrule of the Court's decision by a majority vote?

The separation of powers question taps in this issue because it's the judiciary, by and large, that bears the responsibility of protecting the rights of political minorities (especially "discrete and insular" political minorities) from incursion by the "majority rules" political branches. This is arguably a court's most important constitutional responsibility. Although practices vary (quite a lot of state court judges are elected, and not life-tenured), we expect judges to insulate themselves from the political exigencies of the moment. When a constitution promises equal protection under the law, and the government fails to deliver, it's the judges' gig to set things right. The notion that a court's exercise of this solemn responsibility merely bats the ball back cross-court to the legislature — so it can take another swing — seems constitutionally problematic.

About as problematic is the notion that protections constitutionally conferred on political minorities might be blithely overrided by a fast-track amendment process that requires only the approval of the legislature (by a 2/3 supermajority in both houses, admittedly), followed by a ballot initiative. A constitution is hardly protective of minorities of any kind if a majority can amend it to preclude those protections, simply by virtue of majority rule. So the California Supreme Court finds itself asked by the anti-Prop 8 litigants to push this issue into the category of very significant constitutional changes that must be wrought by revision, and not by amendment.

As someone who supports same-sex marriage and the constitutional role of the judiciary in protecting the rights of minority groups, I find the plaintiffs' arguments pretty compelling here. But there are important arguments to consider on the other side: in our state and federal systems we generally accept that the judiciary has the last word on constitutional matters, and the concentration of that power in the hands of very few is easier to swallow when we know there's an amendment process out there — just in case. While I don't think that amendment process was appropriately invoked here, and I would support an invalidation of Prop 8, things necessarily get a bit dicey when a court invalidates a constitutional amendment that overrules a decision that invalidated state action. We surely wouldn't want that same court to get too comfortable acting in that fashion. These controversies are always a game of chicken between the legislature and the courts, and each new round of action brings the cars closer to crashing.

What's brilliant about the legal arguments here is that the Court isn't required to favor one constitutional dictum (don't discriminate . . .) over another (. . . but in this one case it's OK). Massachusetts almost got to this point on the same-sex marriage issue, and at least one Justice in the Supreme Judicial Court rumbled that, notwithstanding that the proposed amendment articulated a specific exception to the general antidiscrimination mandate, he might just rule that some constitutional requirements (specifically, the bits that call for equal protection) are more equal than others. The California court has an out, and the anti-Prop 8 plaintiffs found it: this ballot initiative doesn't make it into the constitution, because it ought to take more than a legislative vote and ballot initiative to undercut minority rights.

It's not controversial to accept that the people can amend their constitutions, and that these amendments might even overrule considered constitutional decisions of a polity's highest court. But some thought should be given to calibrating the amendment process so that amendment doesn't simply give the people a second crack at instituting discriminatory policies against a minority. Amending a constitution ought to be hard, and it ought to be especially hard if the amendment would limit minority rights. Prop 8 proponents will argue that the 2/3, two-houses supermajority precondition to the ballot initiative is hard enough. I expect that the California Supreme Court will disagree, and rather than wage branch-on-branch warfare on a separation of powers theory, it will rule that a marriage ban was a matter for revision, not amendment, and invalidate Prop 8.

The big question is, if the Court so holds, and the people go back and push through a marriage ban by revision, will there be more litigation? Still more chicken to be played in California — stay tuned.


Mithridates said...

Well, isn't it obvious that this is an amendment and not a revision? No one is fundamentally changing the way California is governed.

Moreover, a 2/3 majority was needed in both housed to get this on the ballot, right? This isn't just a slim majority getting swept into office one term and doing something stupid that the court needs to protect us from - this is the vast overwhelming super-majority of the state's representatives speaking.

I'm all for allowing gay marriage (or the state getting out of the marriage business altogether and giving everyone civil unions). So on the policy issue I agree 100%. But on the legal issue, I just don't get it.

3/4 of the states want anything at all and its the law of the land. It seems that Prop 8 passed California's version of this hurdle.

Phutatorius said...

Well, I may have been a little flip about how I described the difference between the revision and amendment categories. There's a fair amount of case law on this, and I would defer to that. Dale Carpenter writes a bit on this on Volokh.

The gist of it is that big-deal changes are for revision, and smaller potatoes are amendment-worthy. Whether it goes to the core of California's governance was an on-the-fly formulation of mine. What I meant to say is that equal protection is a core constitutional value, and it goes a bit out the window if a ruling that protects minorities is vulnerable to override by plebiscite.

Is the 2/3 supermajority requirement enough protection for minorities? You might say so: I'm not so sure.

And I think you understate just how hard it is to amend the federal constitution. First you need the 2/3 in both houses, and then 3/4 of the states have to approve the amendment. The analogy here would be that Prop 8 would have to win in 3/4 of California's counties or congressional districts.

I'm not saying that the federal calibration is spot-on for protecting minorities (is it too hard/too easy?), but I feel I can speak more confidently when I say that California's amendment process is up to the job.

Mithridates said...

Want to go see a gladiator movie?

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