More Comments on the California Decision (Updated)

Scott Lemieux notes something that I've been saying for a long time, in response to Eugene Volokh on the California marriage decision:

I am, however, somewhat puzzled by his implication of disagreement with the proposition that "California Supreme Court's same-sex marriage decision actually consistent with the democratic process." In the American system, for better or worse, it's part of the democratic process for the judiciary to scrutinize the actions of the other branches as well as (in California's case) popular initiatives and pass judgment about their constitutionality. Strong-from federal review is a well-established part of this process, making California's effectively very weak-form review certainly consistent with it (as Volokh somewhat concedes here.) I can imagine, in the abstract, an argument that the courts should always defer to other branches or the people unless the text of the constitution is clear. But, in practice, virtually nobody in the American system believes this or acts like this in practice, so these claims generally amount to arguments that progressives should unilaterally disarm. I don't know if this is true of Volokh specifically, but certainly most of the critics of the California decision have no objection to cases where the courts use ambiguous constitutional materials to override electorally accountable officials to reach more congenial policy results (cf. Parents Involved, Garrett, Morrison) and are also strongly critical of the court in some case where it does defer in the face of ambiguity (cf. Kelo, Raich, Grutter.)

An integral part of the dialogue in the American system is legal action or the threat of legal action. The courts are one of the places that the dialogue happens -- we need the references to our founding documents in these cases, and explication of the varying interpretations to make clear just what the alternatives are. (If anyone thinks I'm going to be satisfied by having the argument laid out by Focus on the Family and the Human Rights Campaign, guess again.)

One of Lemieux' commenters nails it down in the words of Alexander Hamilton, no less:

"The interpretation of the laws is the proper and peculiar province of the courts. A constitution is in fact, and must be, regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought of course to be preferred; or in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than by the former."

Volokh comments specifically on the two bills enacted by the California legislature and the governor's veto of those bills:

I think it's a mistake to ascribe much significance to these vetoed bills. Under California law, the California Legislature has no authority to by itself reverse -- even with the Governor's approval -- an initiative statute, such as the California ban on same-sex marriage (enacted in 2000); reversing such an initiative statute through the legislative process requires a subsequent popular vote. The legislature may at most place the amendment on the ballot.

As fas as I know, he's correct on the technical aspects of this, but I think it's a mistake not to ascribe some significance to the fact of the bills' passage and the reasons the governor gave for his veto, and instead to rely on a referendum that was 1) the outcome of a well-coordinated scare campaign, and 2) is eight years old in a time when attitudes about the question of same-sex marriage are undergoing rapid change.

I've touched on that last point several times, but I think it's an important chink in the anti-marriage argument in this case: Proposition 22 was passed eight years ago and by all available measures no longer accurately reflects the attitude of the people of California (if it ever did).

So what we're left with is that the California Supreme Court, as is its duty, passed on the constitutionality of Proposition 22 and found it lacking. Their finding reflects not only the substance of the California constitution, but also the changing attitudes on the subject as expressed by the actions of the elected legislature.

Update:

Glenn Greenwald also hits my point, based on a commentary by Benjamin Wittes, and does it much more elegantly and forcefully than I have been able to do. (I thought I had commented on Wittes' response to the decision, but looking at it again, I probably decided that the essay was so bad it didn't merit comment. I mean, it's really cheap.) (I had intended to, and e-mailed myself the link, which I just found. I'll just let this stand, since I just lost the post I wrote on it. Just let it be said that he miscasts the whole argument, hauls out all the standard right-wing scare words, and doesn't let reality interfere with his diatribe at all. Happily, a number of his commenters call him out on it.)

Update II:

More commentary from TNR: E. J. Graff, a fairly lucid look (although the commenters are woefully ignorant of history and basic civics); Jeffrey Rosen, who relies too much on the Dobson Gang talking points; Richard Just, who points out the flaws in Rosen's discussion; and David Link, who looks at the likelihood of it being overturned.