AG adds volatile new twist to Prop 8 litigation

by on December 20, 2008  •  In Marriage

CA Attorney General Jerry Brown surprised all sides in the Prop 8 litigation yesterday with a 90-page brief that takes a unique position in the case, not agreeing completely with either side. In general, a state attorney general is expected to defend the validity of all state laws, regardless of whether s/he believes they are proper, unless exceptional circumstances dictate otherwise. Brown argued that Prop 8 should be invalidated by the court, but on a natural rights ground that no one else has argued, for which there is no direct precedent.

Opponents of Prop 8 sought to have it rescinded by invoking a murky distinction in CA law between amendments to the constitution, which voters can adopt, and more fundamental revisions to the constitution, which require a longer, more cumbersome process.  Led by NCLR lawyers, the challengers argued in their initial petition seeking review that Prop 8 made "far-reaching changes to the nature of [the state's] governmental plan" and was such a fundamental abrogation of a minority group's constitutional rights that it amounted to an evisceration of judicial authority. For that reason, they argued, it was a revision, not an amendment, to the state constitution. (They will file briefs on Jan. 5 responding to those filed yesterday.)

The AG's brief argued that Prop 8 was not a constitutional revision, but instead a change of fairly narrow scope, affecting only the particular question of marriage, not the structure of government. But the AG is also arguing that because the state supreme court had found the right to marry to be an "inalienable" liberty right, voters could not amend the constitution to withdraw it from a class of persons. The brief asserts that rights found to be "inalienable" enjoy a privileged place in the constitutional scheme, and that voters lack the power to amend the state constitution to abrogate those rights unless there is compelling justification.

The logic behind this claim is that "inalienable" rights are so denominated because they pre-date the state constitution or, indeed, any social compact. They are "inherent in human nature," rights "that no government can take away." (Brief at p. 80) The individual surrenders only those inalienable rights "considered essential to the just and reasonable exercise of the [state's] police power in furtherance of the objects for which it exists." (Brief at p. 81) The precedents cited consist chiefly of quotes, like the foregoing, from 19th and early 20th century case law, a time when natural rights arguments were considered much more jurisprudentially legitimate than they are today.

Wow. Will this fly?  Should it fly? 

It's a pretty breathtaking assertion that a court has the power to rule that the constitutionally guaranteed right to amend a constitution by popular vote simply does not exist if the effect of the amendment is to withdraw a right that the same court has found to be fundamental. I'm a big believer in judicial review, but this?  That's a lot of power for the courts. On the other hand, the underlying problem is the danger exemplified by Prop 8 – that a simple majority of voters can deprive an unpopular minority of important rights.  Prop 8 won by almost 600,000 votes; even in a big state, that's a pretty clear majority. (Or in percentage terms – the 52-48 split was the same as in the Bush-Kerry race in 2004.) But what if Prop 8 had won by 6,000 votes? By 600? By 6?

By comparison, Florida has a much saner system than California for amending its state constitution by popular vote, because any amendment requires a 60 per cent majority to pass.  (Unfortunately, the anti-gay marriage amendment achieved that mark.) The supermajority requirement doesn't prevent the foreclosure of rights to a minority, but at least it makes that more difficult to achieve. If the same 60 per cent requirement had been in effect in California, Prop 8 would have fallen short. The California system relies on the revision process to insure that really important changes are made only after a much more involved process. Unfortunately, though, the criteria for distinguishing a revision from an amendment are far from clear.

Brown caveats his assertion to a limited degree.  He notes that the question of whether there is a natural rights limit on revising the state constitution is not before the court.  In other words, if proponents of a revision take it through the longer process, which includes approval by the legislature, then there would be no bar to curtailing even a fundamental or inalienable right. He also asserts that if a compelling justification existed, i.e. a curtailment was needed to further essential aspects of governmental power, perhaps the power to quarantine infectious persons during an epidemic, for example, that also would be permitted. But it's still a remarkable, perhaps unprecedented, legal argument, that raises fundamental questions about the role of popular constitutionalism.

Whether the AG's theory carries the day or not, it makes the Prop 8 litigation even more interesting for students of constitutional law.  Before, the core issues of which institutions of government have the power to determine the scope of individual liberty was somewhat obscured in the weeds of ambivalent precedents about the difference between an amendment and a revision, an issue that is germane in only a handful of states. Brown's argument certainly surfaces the big questions.

Which side will the AG's brief help?  Hard to say – maybe both, maybe neither.  The brief's strong argument that Prop 8 was not a revision can't be good news to the lgbt and other groups challenging Prop 8. On the other hand, the Prop 8 proponents are livid that the state AG is not defending a measure adopted by a majority of the voters.

On the question of retroactivity, Brown is urging the court not to invalidate marriages performed between June and November, while the court's decision granting marriage rights was in effect. According to press reports (I haven't been able to find a copy of the brief), Prop 8 defenders are arguing that it is fully retroactive.  They also announced their new lead counsel: Kenneth Starr, former chief inquisitor of President Clinton and now dean of Pepperdine Law School.

In a case that is cultural theater as much as it is law, Brown's argument could make the Prop 8 challengers seem less radical by comparison. After all, they are arguing within the revision/amendment framework, and essentially concede that if Prop 8 was a mere amendment, it's valid. Or, it could offer the court a path out of a messy case, allowing them to kill off Prop 8 without having to declare it fish or fowl, in a way that hypothetically creates a powerful precedent for the future, but would likely turn out not to be directly relevant again, since the political intensity of the sex/marriage/religion mix seems sui generis, at least for our lifetimes. Or, the court could ignore it.

Whatever happens, I'm starting to think that the Prop 8 litigation could turn out to be more substantively engaging than the original right to marry claim, which, for all the emotional heat it generates, has gotten pretty stale intellectually.


One Response to AG adds volatile new twist to Prop 8 litigation

  1. BradK December 21, 2008 at 2:40 PM

    Hat tip to Kip over at Stitch In Haste for highlighting this great piece…

    I’m neither a lawyer nor a legal scholar by any stretch, but isn’t what AG Brown arguing in his brief consistent with the tenor of the court’s decision in Re: MARRIAGE CASES? Namely, that denying marriage to same-sex couples was in conflict with the equal protection/bill of rights provision in the CA state constitution and that recognizing these rights did not in any way impact upon opposite-sex marriages?

    If the court rules in favor of AG Brown’s position wouldn’t this pretty much preclude any further efforts to ban same-sex marriage in the future? This seems like a much more efficient and durable position to establish and defend than simply arguing the semantics of a Revision Vs. Amendment, which, even if it prevails would leave the door open to future initiatives.

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