Nan Hunter

A new twist in the Prop 8 litigation

Filed By Nan Hunter | December 21, 2008 7:00 PM | comments

Filed in: Marriage Equality, Politics
Tags: Attorney General Jerry Brown, law, marriage, Prop 8

CA Attorney General Jerry Brown surprised all sides in the Prop 8 litigation by filing a 90-page brief in the state supreme court that takes a unique position in the case, not agreeing completely with either side. In general, a state attorney general is expected to defend the validity of all state laws, regardless of whether s/he believes they are proper, unless exceptional circumstances dictate otherwise. Brown argued that Prop 8 should be invalidated by the court, but on a natural rights ground that no one else has argued, for which there is no direct precedent.

Opponents of Prop 8 sought to have it rescinded by invoking a murky distinction in CA law between amendments to the constitution, which voters can adopt, and more fundamental revisions to the constitution, which require a longer, more cumbersome process. Led by NCLR lawyers, the challengers argued that Prop 8 made "far-reaching changes to the nature of [the state's] governmental plan" and was such a fundamental abrogation of a minority group's constitutional rights that it amounted to an evisceration of judicial authority. For that reason, they argued, it was a revision, not an amendment, to the state constitution.

The AG's brief argued that Prop 8 was not a constitutional revision, but instead a change of fairly narrow scope, affecting only the particular question of marriage, not the structure of government. But the AG is also arguing that because the state supreme court had found the right to marry to be an "inalienable" liberty right, voters could not amend the constitution to withdraw it from a class of persons. The brief asserts that rights found to be "inalienable" enjoy a privileged place in the constitutional scheme, and that voters lack the power to amend the state constitution to abrogate those rights unless there is compelling justification.

The logic behind this claim is that "inalienable" rights are so denominated because they pre-date the state constitution or, indeed, any social compact. They are "inherent in human nature," rights "that no government can take away." (Brief at p. 80) The individual surrenders only those inalienable rights "considered essential to the just and reasonable exercise of the [state's] police power in furtherance of the objects for which it exists." (Brief at p. 81) The precedents cited consist chiefly of quotes, like the foregoing, from 19th and early 20th century caselaw, a time when natural rights arguments were considered much more jurisprudentially legitimate than they are today.

Wow. Will this fly? Should it fly?

It's a pretty breathtaking assertion that a court has the power to rule that the constitutionally guaranteed right to amend a constitution by popular vote simply does not exist if the effect of the amendment is to withdraw a right that the same court has found to be fundamental. I'm a big believer in judicial review, but this? That's a lot of power for the courts. On the other hand, the underlying problem is the danger exemplified by Prop 8 - that a simple majority of voters can deprive an unpopular minority of important rights. Prop 8 won by almost 600,000 votes; it was not really close. But what if it had won by 6,000 votes? By 600? By 6?

Brown caveats his assertion to a limited degree. He notes that the question of whether there is a natural rights limit on revising the state constitution is not before the court. In other words, if proponents of a revision take it through the longer process, which includes approval by the legislature, then there would be no bar to curtailing even a fundamental or inalienable right. He also asserts that if a compelling justification existed, i.e. a curtailment was needed to further essential aspects of governmental power, perhaps the power to quarantine infectious persons during an epidemic, for example, that also would be permitted. But it's still a remarkable, perhaps unprecedented, legal argument, that raises fundamental questions about the role of popular constitutionalism.

By comparison, Florida has a much saner system than California for amending its state constitution by popular vote, because any amendment requires a 60 per cent majority to pass. (Unfortunately, the anti-gay marriage amendment achieved that mark.) The supermajority requirement doesn't prevent the foreclosure of rights to a minority, but at least it makes that more difficult to achieve. California's system relies on the revision process to insure that really important changes are made only after a much more involved process. Unfortunately, though, the criteria for distinguishing a revision from an amendment are far from clear.

Whether the AG's theory carries the day or not, it makes the Prop 8 litigation even more interesting for students of constitutional law. Before, the core issues of which institutions of government have the power to determine the scope of individual liberty was somewhat obscured in the weeds of ambivalent precedents about the difference between an amendment and a revision, an issue that is germane in only a handful of states. Brown's argument certainly surfaces the big questions.

Which side will the AG's brief help? Hard to say - maybe both, maybe neither. The brief's strong argument that Prop 8 was not a revision can't be good news to the lgbt and other groups challenging Prop 8. On the other hand, the Prop 8 proponents are livid that the state AG is not defending a measure adopted by a solid majority of the voters.

On the question of retroactivity, Brown is urging the court not to invalidate marriages performed between June and November, while the court's decision granting the right to marry was in effect. According to press reports (I haven't been able to find a copy of the brief), Prop 8 defenders are arguing that it is fully retroactive. They also announced their new lead counsel: Kenneth Starr, former chief inquisitor of President Clinton and now dean of Pepperdine Law School.

In a case that is cultural theater as much as it is law, Brown's argument could make the Prop 8 challengers seem less radical by comparison. After all, they are arguing within the revision/amendment framework, and essentially concede that if Prop 8 was a mere amendment, it's valid. Or, it could offer the court a path out of a messy case, allowing them to kill off Prop 8 without having to declare it fish or fowl, in a way that hypothetically creates a powerful precedent for the future, but would likely turn out not to be directly relevant again, since the political intensity of the sex/marriage/religion mix seems sui generis, at least for our lifetimes. Or, the court could ignore it.

Whatever happens, I'm starting to think that the Prop 8 litigation and ruling could turn out to be more substantively important and interesting than was the decision on marriage.

Cross-posted at hunter of justice

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Are not one of our inalienable rights the "pursuit of happiness" ? We are one of the 18,000 married couples in California, and by our marriage cirtificate we were pursuing happiness of being a bonded couple under civil law.

The phrase "pursuit of happiness" appeared in the 1967 Supreme Court case, Loving v. Virginia, 388 U.S. 1 (1967), which focused on an anti-miscegenation statute. Chief Justice Warren wrote:

The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
The phrase is used in the depression-era case Meyer v. Nebraska, 262 U.S. 390 (1923), which is seen as the seminal case interpreting the "liberty" interest of the Due Process clause of the 14th amendment as guaranteeing, among other things, a right to the pursuit of happiness, and, consequently, a right to privacy.

However, earlier judicial opinion, in Butchers' Union Co. v. Crescent City Co., 111 U.S. 746 (1884), considered Jefferson's phrase to refer to one's economic vocation of choice rather than the more ephemeral search for emotional fulfillment, although one may be predicated on the other. U.S. Supreme Court Associate Justice Stephen Johnson Field, in his concurring opinion[3] to Associate Justice Samuel Freeman Miller's opinion, wrote:

Among these inalienable rights, as proclaimed in that great document, is the right of men to pursue their happiness, by which is meant the right to pursue any lawful business or vocation, in any manner not inconsistent with the equal rights of others, which may increase their prosperity or develop their faculties, so as to give to them their highest enjoyment

Marla R. Stevens Marla R. Stevens | December 23, 2008 4:27 AM

While I always enjoy an astute discussion of one of the best and more unique -- and uniquely American -- bits of my great-great-great-great-great-grandfather's writing, it is my understanding that the desire is to keep this in the California court and not let it go federal -- especially, in this particular argument, as the strict constructionist Supremes don't recognize the penumbral. That then begs the question of whether Mr. J's right to happiness was copied into the California Constitution or not -- something for which I do not have an answer. But thereon would certainly hinge the answer to yours.

Don Sherfick Don Sherfick | December 23, 2008 9:30 AM

I agree with Marla's observation about this particular line of argument not being received too well at the federal level because of the current dominance of "strict constructionist" views against "penumbras" (such as the right to privacy). I'd also add that even without the influence of Scalia and Company, federal jurisprudence is much slower to declare class characteristics (like sexual orientation) "suspect", and hence introduce a level of scrutiny that the California Supreme Court has brought to bear.

I would posit a larger concern, though, about leaping too fast to "pre-constitutional" or "extra-constitutional" "natural law" pronouncements which seem to say that even the social compact that underlies any constitutional scheme is subject to greater forces because a majority of a particular branch of government disagrees with the popular will. It begins to sound like arguments made concerning the institution of marriage as somehow being extra-constitutional and even predating recorded history. The literature and legal briefs of the Religious Right are full of claims that these pervasive and universal "truths", (as of course reflected in ONLY ONE version of Scripture, stone tablet, or other manifestation...take your pick) trump any constitutional scheme of things.

Imitating that in advancing LGBT equality interests may not be the best type of flattery.

interesting argument, although i hope that his arguments against the revision/amendment distinction case weren't that good!

[warning - justified anger ahead]

While the legal jargon makes my head dizzy, I wish more Q's were thinking of their future, as in what actually HAPPENS when rights are denied. If they did think ahead they'd be more angry, because they'd imagine the devastations possible.

Maybe MORE of you will NEED to lose your homes, possessions, businesses, and ability to work; horrific, painful, devastating experiences put a WHOLE NEW SPIN on this little "equality fight".
Maybe you need to have your spouse of 30 years die while you are denied visitation. You just may find that "slow & steady" and "reaching across the aisle" is BULLSHIT when laws (or lack of laws) profoundly alter your life as you know it. YES - I am beyond "angry".

I personally think we are all IDIOTS if we continue to support and fund the U.S. government when it is obviously VERY, VERY against our beloved families. IDIOTS.

Lives are destroyed EVERY SINGLE DAY while everyone else writes interesting articles (this is not a personal slam against the author above), organizes clever rallies and marches, and rant endlessly. Children are hurt by marriage inequality. Yet it seems more important to have a "winning argument" than to do anything that will bring REAL CHANGE NOW.

Well, I personally have HAD IT, and will encourage anyone who thinks they TRULY deserve better to put your money where your rights SHOULD be, and refuse to acknowledge the I.R.S. on April 15th. I stopped filing in 2005, and NEVER will again until EQUAL.

Everyone ELSE (gay or straight) can pay my fucking taxes from now on. I've had it.

Don Sherfick Don Sherfick | December 22, 2008 6:19 PM

I have mixed emotions on this (to which Bil Browning and Alex Blaze yawn: "so what else is new?")

I think Brown is right in not doing what would ordinarily be the situation in fighting an initiative that was passed. I believe he's the one who was instrumental in wording the way the question was put on the ballot so that it was a "shall the California Constitution be changed to ban same sex marriage" rather than one saying that the measure would keep a constitution from being interpreted to make it OK. So the side he's taken DEFENDS what he sees has been in the California Constitution all along, as interpreted by California's highest court.

My mixed emotion stems not so much from the particular novelty of his arguments (I agree with Nan that it will be fascinating for constitutional scholars to watch and chew on), but from a feeling that if the Supreme Court overturns Proposition 8 it will provide increased fodder for those who insist that "unelected activist judges" have put themselves above "the people" even in the constitutional amendment process. As a lawyer I think that's unenlightened nonsense, but the impact in other states still fighting (or trying to repeal) oppressive amendments will be felt along these lines.

I would certainly want to see the existing 18,000 marriages stay in place because of a fairly strong presumption against retroactivity. But as to the revision vs. amendment issue, as well as Brown's novel arguments, a subsequent popular reversal in 2010 of the 2008 results might well send a message more consistent with popular notions of representative democracy.

Don, if amendments are put to a vote, they will pass regardless of whether there's a "judicial activism" story to cling on or not.

The precedent an overturning of Prop 8 by the courts would set is immensely good for all; not just gays, but other minorities as well.

Are you a decendant of Thomas Paine or John Locke
before him ?

Thomas Paine elaborated on natural rights in his influential work Rights of Man (1791), emphasizing that rights cannot be granted by any charter because this would legally imply they can also be revoked and under such circumstances they would be reduced to privileges:

It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect — that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few. ... They...consequently are instruments of injustice.

The fact therefore must be that the individuals themselves, each in his own personal and sovereign right, entered into a contract with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.