On California Supreme Court’s Overruling Proposition 8 – Constitutional Principles be Damned

If this CNN article is correct, California Supreme Court is going to review, and likely overrule, Proposition 8 which amended the state constitution to ban same sex marriage.

As a social conservative, where I stand on this issue is hardly clouded in secrecy.  But the degree to which what the California Supreme Court is going to do–and I know it will because the Massachusetts Supreme Court did it with the death penalty–troubles me goes beyond my political ideology.  It offends my notion of rule of law, judicial restraint and constitutional republic.  What the court will do should offend conservatives and liberals alike.

For non-lawyers out there, let me explain how these same sex marriages decisions are reasoned.  As you are no doubt aware, America has a federal form of government.  The United States Constitution is the Supreme Law of the Land.  Whatever contradicts it in the state constitution is unconstitutional.  That doesn’t mean, though, that the states cannot expand on the rights contained in the federal Constitution.

So when a state supreme court declares a right of a civil union or same sex marriage in that state, the right is strictly based on the state constitution.  It has to be, because the United States Supreme Court has never found a right to same sex marriage in the United States Constitution.  Thus, in Massachusetts, the Supreme Court declared that the state constitution’s equal protection clause afforded same sex couples the right to marry.  Whether I agree with this reading or not (I don’t), it’s at least grounded in the state constitution.  And because this is an interpretation of the state constitution, and because such reading does not contradict the federal constitution, the word of the Massachusetts Supreme Court is final on this matter.  It cannot be appealed to the United States Supreme Court because there is no federal question at issue.  And that’s ok.  A state affording its citizens more protection than the federal constitution is entirely consistent with our federal understanding of government.

What is not okay is for the court to ignore the state constitution and create a new right out of thin air.  What the California Supreme Court will do, and what the ACLU wants it to do, is to declare Proposition 8 to be unconstitutional on the theory it takes away a right guaranteed by the state constitution.  That lawyers can seriously argue this point is why the profession is consistently mocked.  Proposition 8 amended the state constitution to ban same sex marriage.  It therefore rejected, and explicitly does not guarantee, a right to same sex marriage.  The state’s vague equal protection clause may no longer be read to create a right which is expressly and unequivocally denied in the constitution.  Whatever “equal protection” means, it certainly doesn’t mean “same sex marriage” because the Constitution now says so.  A provision in the constitution cannot be unconstitutional under the same constitution.  Yet this logical fallacy was somehow accepted and adopted by the Supreme Court in Massachusetts.

This is the very definition of judicial activism.  The seven justices will overrule, not the people, but the constitution, the supreme law of the state.  It is equivalent to the U.S. Supreme Court saying, yes the Constitution says a person must be a natural-born citizen to become president, but we, the nine justices, think that discriminates against immigrants by denying them the fundamental right to become president, so we are going to ignore that provision.  The Constitution be damned.  There’s a “fundamental right” greater than the Constitution.

The dangers of reading rights that don’t exist–or worse, is contradicted by–the constitution cannot be easily understood.  Since the 1960s, liberals have been committing this sin, enthusiastically, aggressively and without reservation, but they forget that it was the free market conservatives in the early 20th century that fathomed a non-existent right called a “right to contract” to strike down a whole variety of labor protection laws, including, most famously, a law that limited the number of hours a baker can work.  The theory was the government cannot interfere with a person’s right to contract with his employer to work for as many hours as he wants.  There is no reference to “right to contract” in the constitution, any more than there is a “right to privacy” or a “right to same sex marriage.”  Yet such a right was adopted and protected for decades because five out of the nine justices thought it was a “fundamental right.”

The dangers of reading what the very many, but not the overwhelming majority, perceive to be a “fundamental right” into the constitution is dangerous because times change.  In the early 1900s, many Americans believed a government could not pass laws to help laborers in the work environment because it infringed on their “right to contract.”  How many people believe that now?  A “fundamental right” should not change over time, and it hasn’t.  The right to speech, assembly, and press are “fundamental” to a healthy, vibrant democracy.  America fought a civil war, two world wars, and segregation of a race to lower class citizenery but the first amendment rights were always held up as “fundamental,” even if the country as a whole failed to live up to them.  To fathom new rights that is the vogue of the generation and read them into the constitution is to diminish the notion of “fundamental rights” and devalue the constitution, the bedrock of American form of government.  The justices who do this not only think too highly of themselves, but don’t give a damn about the rule of law.

As social darwinism was the battle that divided America in the early 20th century, it is the culture divide that separates America in the early 21st century.  The way to deal with the debate over what should or should not be a right–whether it be marriage, abortion, or contract–is to resolve it in the legislature, not the courts.  Although not definitive, the fact that America appears evenly split concerning whether same sex marriage is a fundamental right suggests the right, if it is in fact a right, is at least not fundamental.  Resolve that dispute in the legislature and leave the constitution alone so our next generation may rely upon it as our prior generation did.  The people may need to be taught this lesson, but supreme court justices ought to know better.

This is not to say Proposition 8 cannot be challenged in the courts.  If the ballot initiative did not conform to the California state constitution’s procedural guidelines for a constitutional amendment, the court must strike it down.  (Incidentally, if people are unhappy with the fact that a majority of the people can change the state constitution, a legitimate point, the solution is not to ask the Supreme Court to ignore the constitution, but to change the amendment process).  If Proposition 8 violates the federal constitution, it must be struck down (which decision, by the way, would be appealable to the U.S. Supreme Court because that is a federal question).  But what the California Supreme Court cannot do is to declare Proposition 8 as violative of the state constitution’s due process or equal protection clauses by inventing a right that has no foundation except in the justice’s own person ideology.

Justice Oliver Wendell Holmes, in dissenting on the aforementioned freedom of contract case, famously wrote, “a constitution is not intended to embody a particular economic theory.”  Nor is it intended to embody a particular political ideology.