When the California Supreme Court agreed last week to decide the legality of Proposition 8 which a slim majority of Californians passed Nov. 4, taking from same-sex couples the marriage rights that the court had established in May the debate shifted to a concept far older than that of gay rights.
Essentially, it will decide whether this is a case of the "tyranny of the majority," a phrase Alexis de Tocqueville coined in his classic 1835 book Democracy in America, drawing on a concept from the ancient Greeks that was the philosophical underpinning of the US Bill of Rights and the central paradigm of constitutional democracy.
The founding principle is that basic rights such as the freedoms of speech, religion, and association are not subject to majority approval and can’t be taken away by a simple popular vote. So the question now before the judges is whether the right to marry, which the court ruled had been unconstitutionally withheld from same-sex couples, is among those core rights.
"The whole notion of equal protection is to protect minority interests from the periodic discriminatory impulse of the majority," Robert Rubin, legal director for the Bay Area chapter of the Lawyers Committee for Civil Rights, told the Guardian. "And [upholding Prop. 8] would turn that on its head."
Even before the votes were counted election night, the San Francisco City Attorney’s Office and its counterparts in Santa Clara County and the city of Los Angeles were developing their challenge to the legality of Prop. 8, which they filed Nov. 5.
Both Prop. 8 proponents and the California Attorney General’s Office agreed that the high court should immediately take the case rather than let it rattle around the lower courts for months or years. "Review by this Court is necessary to ensure uniformity of decision, finality and certainty for the citizens of California," Attorney General Jerry Brown wrote to the court.
Brown had previously ruled that the roughly 18,000 marriages performed since May were legal and that Prop. 8 is not retroactive, something proponents of the measure dispute and which the Supreme Court also has agreed to decide in this case. But two of the three "issues to be briefed and argued," as the high court ruled Nov. 19, were more fundamental: "1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (see Cal. Const., art. XVIII, 1-4) 2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution?"
Narrowly framed, the first question asks whether the process of banning same-sex marriage in the constitution should have gone through the more cumbersome revision process, which involves winning a two-thirds vote in the California Legislature before submitting the measure to voters. And the second concerns whether the legislative branch of government (in this case, through a direct vote of the people) can legally override this decision by the judicial branch.
But more broadly framed, both questions go to the same basic issue: can a simple majority of voters take away rights from a protected minority group, one the judicial branch has already ruled is entitled to the same marriage rights as heterosexual couples? The implications of that answer are so profound that City Attorney Dennis Herrera, in a City Hall press conference after the court announced its decision, cast the matter as no less than a "constitutional crisis."
"The cases before the Supreme Court today are no simple rematch. To be candid, the principles implicated here are of far greater consequence than marriage alone," Herrera said. "In short, this case has gone beyond the simple issue of marriage equality. And no matter what your view of same-sex marriage is, it’s important to understand that the passage of Proposition 8 has pushed California to the brink of a constitutional crisis."
He then explained why.
"This measure sought to do something that no other constitutional amendment has ever done here in the state of California, and that is to strip a fundamental right from a protected class of citizens and in doing so, it did not merely undo a narrowly disfavored Supreme Court ruling. Its legal effect is nowhere [near that] simple or elegant. Rather, it upended a separation of powers doctrine deeply rooted in our system of governance. It trounced upon the independence of the state’s judicial branch and it eviscerated the most fundamental principle of our state’s constitution. And if allowed to stand, Proposition 8 so devastates the principle of equal protection that it would endanger fundamental rights of any potential electoral minority, even for protected classes based on gender, race, or religion. And it would mean a bare majority of voters could enshrine any manner of discrimination against any unpopular group, and our state constitution would be powerless to disallow it," Herrera said.
That’s why he said 12 cities and counties have joined this suit including Los Angeles and Alameda counties, which were not part of the original same-sex marriage case along with supporting roles being played by the NAACP, the Mexican-American Legal Defense Fund, the Asia Pacific American Legal Center, and California Council of Churches.
There is some irony to the Council of Churches’ involvement given that religious groups, particularly the Catholics and Mormons, provided the backbone of financial and volunteer support for the Yes on 8 campaign. Yet the council argues that Prop. 8 is an attack on religious freedom.
"It is kind of ironic, and I don’t they they’re paying attention to the big picture, to be honest with you," Eric Isaacson, attorney for the Council of Churches, told the Guardian. "But history tells us that religious groups are often the victims of such persecution."
He cited laws that have taken rights from Jews in many countries and instances of majorities in the United States going after Jehovah’s Witnesses and the Mormons, a group driven from state to state by discriminatory mobs until they finally settled in Utah to enjoy religious freedom.
Beyond the historical and precedent-setting nature of the case, the council’s executive director Rick Schlosser told the Guardian that Prop. 8 discriminates against Episcopal, Unitarian, and other churches that believe all people have the right to marry.
"We work on a lot of religious freedom issues and there’s a huge number of churches that support the right of people to marry," Schlosser said. "There are a lot of churches that think it’s their religious duty to perform same-sex marriages."
Frank Schubert, who managed the Yes on 8 campaign, scoffs at attempts to frame this debate around larger constitutional issues: "This is simply about marriage and what the definition of marriage will be."
He called the chances of overturning the measure "minuscule," and said, "the constitution belongs to the people." Rather than an initiative upsetting constitutional traditions, Schubert blamed the Supreme Court for reinterpreting marriage: "It’s the first time in California that rights that did not exist were granted on a narrow court decision and the people corrected that."
Yet the traditional gender structure of marriage is now in conflict with traditions of equal protection and separation of powers, something same-sex marriage advocates say needs to be the subject of a concerted public education campaign.
"There is a major civics education to be undertaken," Rubin said, recalling how he was also criticized publicly in 1994 for his role in winning a restraining order against Proposition 187, which sought to withhold government services from undocumented immigrants. "Yet the notion that protecting minority interests is not subject to popular will is not that hard to understand."
Maybe, but some constitutional law scholars say the formulation is not quite that simple. "The notion that a majority can’t take away a minority group’s rights, that just isn’t true," said UC Berkeley’s Boalt School of Law professor Jesse Choper. He takes a less philosophical view of the case, noting that California law explicitly allows the constitution to be amended, essentially however the people see fit, a process far easier than the one to change the federal constitution.
Choper said the specific question before the court is whether voters can remove same-sex marriage rights from the constitution. "And the answer is yes, if they do it properly," he said. That determination will come down to whether the judges believe this change is a mere amendment, or a more serious revision. Choper said the case law on that question isn’t well-established, but his reading of it is that plaintiffs face a real challenge in arguing that a simple change to the constitution albeit a weighty one requires the revision process. "It’s uphill," he said. "They’ll have to cut a new cloth."
But Herrera and his fellow plaintiffs don’t agree. While he characterized the coming legal battle as difficult and complicated, he expressed confidence in their ability to show that Prop. 8 changes core constitutional principles.
"That’s why I think this is a revision rather than amendment, because it would so radically change the balance of power and responsibility between our branches of government," Herrera said.
Santa Clara County Attorney Ann Ravel, who joined Herrera’s press conference, agreed, stepping up the podium to say, "Let me just add something to that. If this is not a case of revision, it’s hard to imagine any case that the court might find there to have been a revision, and there have been some."
While Choper may not agree with the plaintiffs on how the court will decide the equal protection questions, he does agree that the outcome could have serious implications for minority rights and the ability of voters to target disfavored groups. "If they can do it to this minority, they can do it to other minorities," Choper said.
Rubin said the religious groups pushing Prop. 8 are being short-sighted: "What they may like today when they have 51 percent of the vote, tomorrow they may be on the 49 percent side and may not like that basic rights come down to majority rule."
And that’s why the issue gets elevated to the larger question of whether this is a case of tyranny of the majority, something that could become an issue for the federal courts, which is likely to see cases challenging whether lax California standards on precedent-setting initiatives might run afoul of bedrock principles in the US Constitution.
"Yes of course you could challenge it in the federal court," Choper said. "If Prop. 8 stands, someone will bring a case about whether discrimination against gay marriages violates the equal protection clause of the federal constitution."
Herrera said he doesn’t want to go there yet, but he left that door open in response to a question from the Guardian: "Are there potential federal issues down the road that could be raised or discussed? It’s no secret that’s potentially there, but at this point, I don’t think that’s something that we’re going to focus on."
THE LONG VIEW
While the judges and lawyers in this case may focus on narrow legal concepts and definitions, Herrera is seeking to present the case in a far grander context.
"Equal protection under the law is what separates constitutional democracy from mob rule tyranny and it is a principle that reaches back eight centuries to the Magna Carta and it has guided the founding of our nation and our state," he said. "So I understand that on same-sex marriage, the emotions on both sides run high, but it’s important to understand the legal stakes are even higher. The cases before the high court today are no longer about marriage rights alone. They are about the foundations of our constitution. And as citizens we share the blessing of a common jurisprudence, and I refuse to accept that it is beyond us to find common ground in its enduring and deeply American principles: equality under the law, separation of powers, and an independent judiciary."
Ravel reinforced Herrera’s perspective, telling reporters, "The Supreme Court is going to decide, as Dennis said, a question that goes to the very foundation of our democracy and that will also impact every city and county in the state. The court has held, previously, that all couples have to be treated equally when it comes to the important institution of marriage. A majority of voters can’t undercut the court’s role in protecting minorities in our society."
Essentially, this is no longer a case about same-sex marriage.
"The merits of the case are different than they were back in May. The fact of the matter is the California Supreme Court found there was a fundamental right to marry and that LGBT couples are entitled to that right. The issue here is should Prop. 8 be struck down because it was an improper amendment versus a revision," Herrera said. "So I think everybody is focused on the right issues." *