Let's Not Litigate Proposition 8 Any More

Same-sex marriage advocates, like me, are bitter about their narrow defeat Tuesday. But there are good and bad ways to respond to the passage of Proposition 8. This is the first of several posts I will make about what I think should, and should not, be done next in the struggle to get gay people the equal rights that ought to be their birthright.

I am really not happy about seeing more litigation against Proposition 8 taking effect.

It was one thing to use the courts to challenge the statutory ban on same-sex marriage. As Matt Yglesias points out, it was effectively beyond the power of any group of advocates to control when and under what circumstances such impact litigation would occur. The best they could do was to try and surf the wave once it came to them.

And I see a proper role for the judicial system in this process anyway; the courts are not majoritarian institutions, are not supposed to be directly influenced by political attitudes. They are supposed to interpret and apply the laws, and that's what they did in the Marriage Cases. For those of you who, like my friend, contend that they simply made up the law out of whole cloth, I say you couldn't be more wrong. The law that they interpreted and applied was the Equal Protection Clause of the California Constitution. All the rage and $75 million worth of political activity was inspired not by what they did or even how they did it, but rather over the result they reached in doing it.

I dispute the notion that the courts triggered a significant backlash against the concept of same-sex marriage. As I posted in the dialogue, my friend believed that such a thing took place and claimed to be motivated by such a backlash -- one powerful enough to make him contemplate voting in favor of Prop. 8 despite his stated advoacy for same-sex marriage. The reason that I think this is not a real phenomenon (or at least, not a significant one) is that most voters have only a foggy idea of what courts do in the first place and lack any real understanding or interest in whether a court really has exceeded its proper role in the system. Most people care about the result. "Was it the right decision" is a question people can understand, "Was the decision made in the right way" is something that generally only concerns lawyers. And there are fewer than 100,000 lawyers in California, a state with nearly 30,000,000 people.

Finally as to the role of the Courts in the process, the authors of the Marriage Cases quite obviously did not contemplate that their opinion would resolve the issue once and for all. The Supremes were well aware that there was then pending an initiative constitutional amendment, which became Prop. 8, that would reverse their opinion. Their opinion makes very clear that they were aware of the political controversy that would result from the opinion. And they invited that political dialogue to take place. Ultimately, the people get to decide, not the Courts. California, unlike the Federal government, makes amending its constitution relatively easy.

So now, the "No on 8" campaign has filed a petition with the Supreme Court, which contends, basically, that this was a prohibited "revision" to the Constitution, rather than a permitted "amendment". UCLA Law Professor Steve Bainbridge analyzes this contention, and provides a good quote explaining both the fairly-stated contention of the Prop. 8 opponents as well as the applicable law. I would love it if this argument was right, but Prof. Bainbridge is correct -- it's not. Bainbridge's colleague Eugene Volokh explains it well here -- yes, Prop. 8 restricts the scope of a fundamental right, but an amendment can do that. Prop. 8 is better considered an "amendment" than a "revision" to the Constitution and the Supremes should find that way.

More litigation is in the pipe, too, with a petition for a writ of mandate filed by the City and County of San Francisco and the County of Santa Clara against implementation of the newly-passed Prop. 8, which you can read in full here. The basic contention of that petition is that the Constitution does not authorize initiatives to take away fundamental rights, at least not by a bare majority.

Both of these legal challenges should fail. Contrary to San Francisco's claims, the state's Constitution does authorize the majority of this state to do whatever the hell it wants. That's democracy. The 1911 revision to the Constitution implementing the initiative process was designed to create as direct a form of democracy as possible, and that's what has happened.

The fact is, these challenges are of dubious merit, both legally and politically.

The only limits on the changes that the electorate can make directly to the Constitution are found in the Federal Constitution, and Prop. 8 does not implicate any Federal right.

For that reason, I am also of a mind to be opposed to challenges to Prop. 8 or to bans on same-sex marraige in Federal court. The Federal Constitution's Equal Protections Clause does not apply to homosexuality. Even Lawrence v. Texas, the most gay-friendly case the Supreme Court has ever handed down, was decided on substantive due process grounds, not equal protections grounds. Any challenge in Federal court is doomed to failure.

On the merits, then, I think that these legal challenges to Prop. 8 are not well-taken. But more than that, they are ill-advised.

The time for making these legal challenges to whether Prop. 8 should be implemented was before the election. California's state court system, unlike the Federal courts, authorizes the issuance of advisory opinions and this would have been a live case in controversy anyway. If these were the concerns aout Prop. 8, they could and should have been raised in such a fashion as to prevent the matter from ever going to the ballot in the first place -- because if the voters do not have the direct power to do this thing, they should have never been asked if they wanted to do it at all.

We argued our side, and we lost. The result of our loss is that our state's Constitution is now a vehicle for discrimination. That is an ugly result but it is the result. And we have to accept that fact. Democracy is utterly dependent on the side that loses a dispute in an election accepting the result, obeying the laws that result out of that process, and confining its efforts to change the laws to peaceful and lawful means. Now, filing legal challenges to a newly-enacted law is indeed a lawful activity, but they do represent an overt effort to thwart the enactment of something that we now know to be the will of a majority of the voters.

What we need to do is put on our big girl panties and deal. We need to find a productive way to make our case again. And that will have to be a political process. More than that, it will have to be a social process.

Which brings me to my last point -- we should not immediately seek to put a repeal of Prop. 8 on the ballot. While all of the arguments in favor of Prop. 8 were, in my humble opinion, vacuous at best and fraudulent at worst, there would be one very powerful, and very true, argument against a repeal -- "We voted on that already." There must be some level of finality in the voters having their say-so on an issue. We don't elect a new President every six months for a reason -- holy crap, if we did, no one would be able to get anything done because we'd be caught up in a non-stop campaign all the time. Ultimately, yes, we will have to seek a repeal of Prop. 8. But the March 2009 election is not going to be the right time to do it. If we want to do it right, we should do it intelligently.

I think I have a road map to help get us there, and that will be what I write on next. But nowhere on that road map will you find a challenge to Prop. 8.