LAST November, 13,084,570 California voters expressed themselves on Proposition 8, which said that their state Constitution should be amended to define marriage as a relationship between a man and a woman. The voters, confident that they had a right to decide the question by referendum, endorsed Proposition 8 by a margin of 52.3 to 47.7.
Now comes California’s attorney general, Jerry Brown – always a fountain of novel arguments – with a 111-page brief asking the state Supreme Court to declare the constitutional amendment unconstitutional. He favors same-sex marriages and says the amendment violates Article 1, Section 1 of California’s Constitution, which enumerates “inalienable rights” to, among other things, liberty, happiness and privacy.
Brown’s audacious argument is a viscous soup of natural-law and natural-rights philosophizing, untethered from case law. It is designed to effect a constitutional revolution by establishing an unchallengeable judicial hegemony. He argues that:
The not-really-sovereign people can’t use the constitutionally provided amendment process to define the scope of rights enumerated in the Constitution; California’s judiciary, although established by the state’s Constitution, has the extra-constitutional right to supplement that enumeration by brooding about natural law, natural justice and natural rights, all arising from some authority somewhere outside the Constitution; the judiciary has the unchallengeable right to say what social policies are entailed by or proscribed by the state Constitution’s declaration of rights and other rights discovered by judges.
What is natural justice? Honorable people disagree. Which is why such consensus as can be reached is codified in a constitution. But Brown’s reasoning would make California’s Constitution subordinate to judges’ fancy regarding natural justice. Judges could declare unconstitutional any act of Constitution-revising by the people.
Kenneth Starr (now dean of Pepperdine University Law School), in a brief responding to Brown’s, notes the absurd consequences of the proposition that “the people can never amend the Constitution to overrule judicial interpretations of inalienable rights.”
Long ago, a California court struck down a Sunday-closing law because “it infringes upon the liberty of the citizen, by restraining his right to acquire property.” And a court struck down a law against scalping theater tickets because it violated rights “inherent in every natural person.” By Brown’s reasoning, judges could declare unconstitutional any constitutional amendment revising these judicial judgments.
Passing laws by referenda is an imprudent departure from the core principle of republican government – representation: The people do not decide issues, they decide who shall decide. But the right of Californians to make laws through the direct democracy of referenda is as firmly established as it is promiscuously exercised.
In 2000, voters passed Proposition 22, a law stipulating that marriage is a heterosexual relationship. Last May, California’s Supreme Court struck down the law on the ground that there’s no “compelling state interest” in not recognizing same-sex marriages under the constitutional clause guaranteeing “equal protection” of the laws. Foes of same-sex marriage quickly gathered enough signatures to place on the November ballot the amendment to the Constitution.
The breadth of California’s toleration of sexual lifestyles refute the worry that gays are a vulnerable minority menaced by majoritarian tyranny. Proposition 8 merely restored to California law the ancient, nearly universal definition of marriage, one resoundingly endorsed by the US Congress (85-14 in the Senate, 342-67 in the House) and written into the laws of 47 other states.
Just eight years ago, Proposition 22 was passed 61.4 to 38.6. The much narrower victory of Proposition 8 suggests that minds are moving toward toleration of same-sex marriage. If advocates of that have the patience required by democratic persuasion, California’s ongoing conversation may end as they hope. But if the conversation is truncated, as Brown urges, by judicial fiat, the argument will become as embittered as the argument over abortion has been by judicial highhandedness.
Brown’s reasoning would establish an unassailable tyranny of a minority – judges – over any California majority. Brown, 70, California’s former and perhaps future governor, once was a Jesuit seminarian. One American Heritage dictionary definition of “jesuitical” is “given to subtle casuistry”; one of that dictionary’s definitions of “casuistry” is “specious or excessively subtle reasoning to rationalize or mislead.” These definitions, although unfair to Jesuits, are descriptive of Brown’s argument.