Indecent Proposition

Belated Bemoaning of a Bad Decision

This May, just a couple of days after the anniversary of the White Night riots in San Francisco, the California Supreme Court delivered its judgement on the constitutionality of Proposition 8. Perhaps fittingly, the verdict was another miscarriage of justice. A mean-spirited proposition that sought to take away hard won marriage rights from same-sex couples has ended up vitiating California’s constitution and stained the California Supreme Court’s otherwise immaculate record as a bulwark against minority discrimination.

The question before the court was fairly simple. In layman’s language, the court
was asked to rule whether Proposition 8, which amended the constitution to ban
gay-marriage, represented such a significant change to the constitution that it
needed to first be passed by the California legislature before being put on the ballot for a popular referendum—something that stood not a whit of a chance in the
Democrat-dominated body.

In its landmark ruling in May 2008, the court had legalized gay marriage on the
grounds that marriage was a fundamental right under the state’s constitution and
that the LGBT community was a “suspect” class; a term that essentially classified them as a minority that has been or is being discriminated against.

Yet, only twelve months after their historic verdict in favour of gay marriage
on the grounds of fundamental rights to equality guaranteed by the constitution,
the judges came to the conclusion that the changes wrought by the Proposition were
not significant enough as to cause them to overturn it.

This writer was not surprised by this ruling: the judges had betrayed their direction
during the legal hearings in the case in March. Judge Joyce Kennard, who ruled in
favour of gay marriage in the 5-4 verdict, for example, commented that there was
just no precedent for overturning a proposition. But one doesn’t have to be gay or member of a minority to find their conclusion dangerously flawed when taken together with their May 8 ruling.

Flawed, because Proposition 8 is unique in the way it has changed the California constitution. It is the first time that something the court termed discriminatory has been written into the document. In that sense it is unprecedented. By passing Proposition 8 California voters were not fine-tuning the constitution but, perhaps unwittingly for many, shredding it’s guarantee of minority rights. In this layperson’s view, that seems like a pretty darn big change to the document in question.

Dangerous, because having upheld Proposition 8, the court has opened the door for
other anti-minority amendments to be put on future popular ballots. For example, a
future ballot could take the Mormon community’s right to marriage away. This may
sound far-fetched, but the Mormons are an even smaller minority than the LGBT
community; and the conservative Christian organizations that were a key proponent
of Proposition 8 are often as prejudiced against the “Mormon cult” as they
are against “the gays.” It wasn’t just a sense of solidarity that drove other minority organizations like NAACP to petition the court to overturn Proposition 8.

After the court upheld Proposition 8, some commentators and activists on both sides of the issue (including prominent gay blogger Andrew Sullivan) came to the conclusion
that having won in a electoral fight, fair and square, democratic principles required
that Proposition 8 be allowed to stand instead of being overturned by an ‘activist’
court. They are wrong.

The view that the ultimate arbiter of laws in a democracy is the electorate betrays a
shallow understanding. Democracy is not defined solely by majority rule. Rather, it is majority rule accompanied by a guarantee of minority rights. This guarantee is not
provided by the electoral process, but by the judiciary. The judiciary exists not because it is practical—to substitute for referendums whenever a law’s constitutionality is brought into question—but because it is necessary to place a check on a majority’s power.

The judges, all steeped in decades of legal practice, could hardly have missed
the implications of what they were doing. So what could have prompted such a
decision? The answer perhaps lies in the fact that in California judges are not just
judges; they are also politicians. California voters periodically decide whether or not California Supreme Court judges will be retained—and several judges were threatened with electoral challenges if they dared
to overturn the “will of the people.” In July 2008, in a case that surprisingly did
not make a splash at the time, the court was asked to disallow Proposition 8 from
being placed on the ballot on the same grounds. This was way before the election
and just after the court’s legalization of gay marriage. The hearings on that case
were held in camera—that is, they were not open to the public—unlike any of the
other hearings in cases related to the issue. The court’s brief decision to dismiss the petition was announced within a few days.In essence, the judges upheld the validity of Proposition 8 in the middle of last year with no elaboration. On the same question, the judges took more than three months to come to the same conclusion this year and wrote reams of justifications. In May 2008, the court went out on a limb by being brave enough to overturn the law banning gay marriage that had been passed in 2000 by more than 60% of the California voters. The furtive way in which July 8 verdict was pronounced compels speculation that the court was hoping (and expecting like many liberals) to get popular validation for their historic decision, assuming that sufficient Californians had changed their minds since 2000.

Having shown their fidelity to their judicial responsibilities, the judges then flirted with popular approval by allowing Proposition 8 to be placed on the November 2008 ballot—a decision that blew up in their faces. Like Demi Moore’s character in the 1993 movie, Indecent Proposal, the judges lost both objects of their desire—their judicial integrity as well as popular respect (the Left is disappointed and embarrassed by the court; and no court can ever be non-activist enough to please the Right unless they rule themselves out of existence). Meanwhile, an abhorrent proposition is now writ into a once-proud state’s constitution. There is little doubt in my mind that a subsequent election on this issue will reverse the law in favour of same-sex marriage, perhaps as early as 2010. But I would rather that the Proposition 8 decision be reversed in the courts, not in the electoral arena as the unlikely pair, Theodore B. Olson and David Boies, are now trying to do by challenging the California Prop 8 decision in Federal courts.

Most LGBT advocacy groups are against the move for fear of ultimately losing in the
conservative-leaning US Supreme Court. However, it is critical to win this case in the courts, because the primacy of the judiciary in safeguarding minority rights and its role as a check on majority rule needs to be reestablished, not weakened further.

And because the only thing more indecent than the Proposition’s intent in this whole affair, has been the California Supreme Court’s dalliance with its political instincts.