[News] California Supreme Court Upholds Prop. 8

[Anti-Imperialist News]

http://www.counterpunch.org/villarreal05272009.html

May 27, 2009


California Supreme Court Upholds Prop. 8


Separate But Equal Just Fine in California?

By CARLOS VILLARREAL

The California Supreme Court declared today that 
separate but equal is acceptable for gays in 
California when it comes to marriage - indeed it 
is now enshrined, oddly enough, as an exception 
to our Equal Protection clause until voters 
decide to un-enshrine it through a popular vote. 
Voting was central to the whole case as the court 
tackled the question of whether a majority of 
Californians can amend the state constitution at 
the ballot box to deprive a suspect class of a 
fundamental right. The majority decided that 50% 
plus 1 person voting on election day could indeed take such a right away.

In California the initiative process allows a 
majority of voters to amend the constitution. 
Until Proposition 8, however, the people have 
never voted to take a fundamental right away from 
a suspect class. But for the U.S. Constitution, 
allowing such a thing would mean Californians 
could take fundamental rights away from 
Catholics, or African Americans, or women, simply 
through this initiative process and a majority 
vote. In most cases, the U.S. Constitution could 
be used to strike down any such act, but not in 
this case when the vote involves a right 
protected by the California constitution but not 
the federal constitution. Such rights, regardless 
of how fundamental and regardless of suspect 
classification, can simply be voted away by a 
majority. One wonders if a majority could even 
vote away the fundamental nature of certain 
rights or vote away the suspect class designation 
of any group, regardless of previous supreme court interpretations.

It looks like anything goes as long as it is not 
considered a revision to the constitution as 
opposed to an amendment, in which case more than 
a mere initiative and majority vote would be 
necessary. This distinction framed the court's 
opinion today: Proposition 8 was an amendment not 
a revision, and thus it is now part of the 
constitution that the court must interpret and 
enforce. But the court, giving its majority 
opinion through Chief Justice Ronald George, 
cobbles together precedent to define "revision" 
in a confusing and counter intuitive way.

In a nutshell, the test applied by the majority 
was that a revision to the constitution (as 
opposed to an amendment) involved "far reaching 
changes in the nature of our basic governmental 
plan." Here it is stated another way: revision is 
accomplished when an act "necessarily or 
inevitably will alter the basic governmental 
framework set forth in our Constitution." One 
example given by the majority was part of an 
amendment that was struck down because it 
included a section that required that the state 
constitution not provide criminal defendants with 
greater rights than the federal constitution. The 
court said this was a revision not an amendment 
because it vested "all judicial interpretive 
power, as to fundamental criminal defense rights, 
in the United States Supreme Court" as opposed to California courts.

I still don't really know what this means, but it 
may not matter because it isn't clear that 
precedent really constrains the court to this 
narrow and bizarre definition. The dissent says 
the following before going into its own interpretation:

The cases cited by the majority do indeed hold 
that a change to the Constitution that alters the 
structure or framework of government is a 
revision, but these cases do not, as the majority 
erroneously concludes, also stand for the inverse 
of this proposition: that a change to the 
Constitution that does not alter the structure or 
framework of the Constitution cannot constitute a 
revision and, thus, necessarily must be an 
amendment. The reason is simple. None of the 
cases cited by the majority considered this issue, because it was not raised.

Even the majority seemed to acknowledge that this 
interpretation of precedent may not be such a 
bright line, going out of its way to write that 
gays still have all the underlying rights and 
privileges of marriage, just not the designation of "marriage" and:

there is no need for us to consider whether a 
measure that actually deprives a minority group 
of the entire protection of a fundamental 
constitutional right or, even more sweepingly, 
leaves such a group vulnerable to public or 
private discrimination in all areas without legal 
recourse ... would constitute a constitutional 
revision under the provisions of the California Constitution.

Whether or not the court wants to leave such 
legal writing for future justices with a 
different more sweeping set of facts, this court 
actually has made the decision today by clearly 
limiting its definition of "constitutional revision."

The court had plenty of leeway to make a 
different argument. Namely, when the change is to 
the equal protection clause as it applies to a 
particular class, even a minor deprivation 
renders the positive right of equal protection 
little more than a privilege afforded only to 
those groups and for those rights a majority of 
Californians are willing to accept. Thus voting 
to limit such rights is a revision to the 
constitution not a mere amendment, and more process is required.

But what about expanding, rather than limiting, 
equal protection rights through a majority vote? The court addresses this:

... under petitioners’ approach, the people would 
have the ability ­ through the initiative process 
­ to extend a constitutional right to a 
disfavored group that had not previously enjoyed 
that right, but the people would lack the power 
to undo or repeal that very same extension of 
rights through their exercise of the identical initiative process.

Heaven forbid! The court goes on ...

Again, neither the history of the provisions 
governing the making of changes to the California 
Constitution, nor the many past cases 
interpreting and applying those provisions, 
support petitioners’ assertion that the 
amendment/revision distinction properly should be 
understood as establishing such a “one-way 
street” or as mandating such a seemingly anomalous result.

"One way streets" in the law aren't that unusual 
- indeed the Chief Justice seemed to be following 
a "one way street" of legal precedent in the 
midst of a busy downtown clusterf*** with avenues 
heading in all directions. Equal protection 
implies protection, not a lack thereof, and it 
makes sense that narrowing who it applies to 
and/or under what circumstances it applies would 
require more judicial oversight. On the other 
hand, expanding those rights - giving them to 
more people or under more circumstances - doesn't 
raise a lot of cautionary red flags within the 
doctrine of equal protection and its history of 
protecting the rights of disfavored minorities.

In many ways, when we have expanded equal 
protection and provided new rights for people, 
whether at the federal or state level, we are 
really just finally acknowledging, as a people or 
as a state, rights that have existed (or should 
have existed) all along. We never should have 
denied the right to vote from black people or 
women. These are inalienable rights, and it just 
took some time for our government to formally 
recognize them. Would anyone argue that blacks 
have the right to vote now, but they should not 
have had the right to vote in 1860? Discovering 
those rights collectively usually is a one way 
street - once "discovered" only the truly ignorant would argue for going back.

We will move on to the next vote on same sex 
marriage; and equality for gays will be stronger 
when supported through the ballot box. 
Practically, that will make our movement 
stronger; and I favor a ground up approach to 
human rights over an elitist approach to human rights any day.

The main problem with the California initiative 
process isn't the voting, it's the money. People 
or organizations with lots of money can 
manipulate the voting process; if anyone denies 
this ask them why people raise money at all if it 
doesn't play a role (in my opinion a major role) 
in these initiative elections. It's also true 
that pure democracy, even without the influence 
of wealthy, powerful entities, still may require 
caution when rights for minorities are the issue; 
but I firmly believe the threat would be far less 
without that influence of power and wealth.

Regardless, I feel the democratic (litte "d") 
forces are moving forward and equality for gays 
is coming whether the California Supreme Court or 
the Mormons support it or not. That doesn't mean 
we should all just sit by and wait for it to 
happen (the other side will take advantage of 
such inaction); but we must grasp the momentum 
and make sure it moves us toward freedom.

Vote. March. Agitate. Tell your friends and 
family to do the same. The Separate but NOT Equal 
ruling by the Supreme Court of California was an 
awful opinion by the court that must be 
overturned. If the people of California have to do it, let's get to work!

Carlos Villarreal is Executive Director of the 
National Lawyers Guild San Francisco Bay Area 
Chapter. He can be reached at <mailto:carlos at nlgsf.org>carlos at nlgsf.org.




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