May 23, 2013
Prop. 8 and the Misery of the Law
Posted on Jun 4, 2009
By Scott Tucker
The right to rebel is my real subject here, but the misery of the law is not incidental. No good case can be made for rebellion as an unqualified good in itself. But the right to rebel also cannot be limited to the rebel causes that were won long ago and have passed over into our national mythology.
There is a historical irony in the events of Nov. 4, 2008: Barack Obama became the first black president of the United States, and a majority of American voters broke down one more racial barrier to high public office. On the same day, Proposition 8 was passed by a small majority of California voters and added this sentence to the state constitution: “Only marriage between a man and a woman is valid or recognized in California.”
A further historical irony was underscored on May 26, 2009: Obama nominated federal appeals court Justice Sonia Sotomayor to the U.S. Supreme Court, a woman who, if confirmed, may be the first person of Latino heritage on the highest court.1 And on the same day, the California Supreme Court voted to deny validity to the legal suits brought against Proposition 8 after its passage, and thus to make the language of Proposition 8 constitutionally binding upon all citizens of the state.
The majority of the court argued that their hands were tied in delivering this ruling. (See Strauss v. Horton, Tyler v. State of California, and City and County of San Francisco v. Horton, 2009.) The constraints of the state constitution were so clear and binding, in the majority’s view, that their own earlier arguments and decision in favor of granting the legal right of marriage to same-sex couples in California had to be consigned to legal history. The majority opinion, written by Chief Justice Ronald M. George (who had also written the previous majority opinion in favor of same-sex marriage), took great pains to insist that the main issue before the court was not the merits or demerits of same-sex marriage, but instead a strictly legal question of who gets to change the language of the state constitution, under what form, and by what means.
The dissenting opinion written by Justice Carlos R. Moreno also states that the court had already decided in Marriage Cases (2008) that the language of Proposition 8 “discriminates against same-sex couples and denies them equal protection of the law,” so the procedural question of amendment or of revision called for separate resolution. In the case of Proposition 8, is the proposed change a limited and fairly technical amendment? Or is Proposition 8 a serious revision, in both principle and practical scope, of the state constitution? The majority on the court decided Proposition 8 was an amendment, and furthermore that the California Constitution gave the justices on this court no authority over the initiative process and the majoritarian decision of the voters. Moreno, on the contrary, argued that Proposition 8 is indeed a far-reaching change that must be considered a revision, rather than an amendment, of the state Constitution. In Moreno’s words: “The rule the majority crafts today not only allows same-sex couples to be stripped of the right to marry that is recognized in the Marriage Cases, it places at risk the constitutional rights of all disfavored minorities. It weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority. I therefore dissent.”
In summary, Moreno wrote:
Proposition 8 is now a miserable provision of the California Constitution, ratified by a majority of justices who made many miserably consistent legal arguments for an unjust cause. But there are also preposterous legal contradictions in the opinions of the majority of the court. In this regard, we must be grateful for the thorough and devastating dissent penned by Justice Moreno. (His dissent concurs in part with the majority, and in good legal form is titled “A Concurring and Dissenting Opinion.”)
The misery of the law is not an uplifting subject for career politicians, and certainly not for lawyers and judges. They choose to give speeches and write books about the majesty of the law instead, a choice that is understandable given their careers and the general division of labor. No matter what happens behind closed doors, their professions require the projection of optimism to the general public. Big bankers might be shaken in their faith that the hand of God works through the free market. The CEOs of General Motors and Chrysler may still tell customers they will deliver another century of Happy Motoring, and yet have private doubts. Hell, even Bill Clinton may grow tired of his own snake-oil salesmanship on behalf of the Clinton Foundation, and Tony Blair may yet lose faith in the Tony Blair Faith Foundation. But we, the people, are led to believe by high courts and career politicians that only citizens with weak constitutions could waver in our faith in the Founding Fathers.
To make a modest argument for the misery of the law is to make the argument for a small dose of corrective medicine. The malady is constitutional triumphalism. But of course any sane person would prefer that malady over outright dictatorship. And the usual arguments for the rule of law and against the rule of demagogues are no less reasonable for being unoriginal. Justice Sandra Day O’Connor wrote a recent book titled “The Majesty of the Law,” and in 1996 Judge Sotomayor gave a lecture at Suffolk University Law School that was published (with a co-author and in revised form) in the school’s Law Review under the title “Returning Majesty to the Law and Politics: A Modern Approach.” Sotomayor makes the case for a kind of legal realism, namely, for more honest acknowledgement that judges often respond to unforeseen events and to social movements. Judges do not (as a general rule) simply make up the law out of their own will and whimsy, but neither are they obliged to throw themselves under the juggernaut of legal tradition simply because the accumulated weight and momentum of case law is real.
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