Monday, May 19, 2008

California's Supreme Court--Counter-Majoritarian.

In a recent posting on's Writ section, Michael Dorf addresses the question of whether the California Supreme Court acted precipitously in their same-sex marriage ruling. Dorf writes:
The ease with which the California Constitution can be amended provides a partial answer to critics—some of whom even support same-sex marriage on policy grounds—who take issue with the California Supreme Court's decision on the ground that courts should not try to bring about social change in advance of popular acceptance.

That criticism may have some force when leveled at the U.S. Supreme Court in its interpretation of the federal Constitution, because the federal Constitution is extraordinarily difficult to amend. Consequently, a Supreme Court decision based on the Justices' perceptions of what rights count as "fundamental" can control legislation throughout the country, even if a substantial majority of the U.S. population disagrees. But if even a simple majority of Californians disagree with the state Supreme Court about the scope of the fundamental right to marry, and if only eight percent of voters are willing to sign a petition, then their understanding will prevail over the California Supreme Court's. In the argot of constitutional law, decisions of U.S. constitutional law are strongly "counter-majoritarian"; decisions of the California Supreme Court are only weakly counter-majoritarian.
This assertion, that because the California constitution can be easily amended, that the California Supreme Court's decision is only weakly counter-majoritarian and therefore, less offensive.

But such an assertion is absurd on its face. The fact is that the decision is decidedly and expressly countermajoritirian in and of itself, the relative strenght or weakness is irrelevant. The fact is that a majority of Californians had decided, in a referendum, that marriage shall be between a man and a woman. The majority decided it, in a method of amending the constitution, which Dorf notes, is easily done. Further undermining that concept is that California voted in referendum to define marriage only for different sex couples in the full knowledge of the civil union law. Yes, civil unions grant many, indeed all, of the same legal protections granted to married couples. Yes the logic, carried to its inevitable extreme that denying the label of marriage seems patently absurd, but the voters made that decision themselves.

Dorf also writes:
What the critics of the California Supreme Court decision are really saying, when they contend that the Court should not have recognized the right of same-sex couples to marry, is that the Justices should have ignored the law for practical reasons: Courts cannot bring about social change if the surrounding society is not prepared for it, the critics say, and may even precipitate backlash.
Given the ease that the California Constitution can be amended, it seems absurd to think that California's voters cannot at sometime in the future change their minds. Indeed, as society changes and evolves that is exactly what may happen. But the California Court has all but guaranteed a reaction to take place on the ballot in November. There will be a backlash, and rightly so as four California Supreme Court Justices took upon themselves to follow "where logic led" and applied their own sense of morality. As noted before, the logic is not for the Justices to follow, the voters of California presumably knew where the logic led and voted to define marriage as reserved for different sex couples.

What's more is that we are not talking about some 50 or 60 year old law that no one really enforced anymore. We are talking about a constitutional amendment passed by a majority of California voters in the past five years. The majority had spoken.

Dorf oddly asserts that because eight percent of voters signed a petition, then their views somehow will prevail. The eight percent rule is for ballot qualification, it hardly amounts to a majority. But that is a minor point (that Dorf should know better though), the fact is that a majority of Californians had voted for the amendment.

Dorf contends that the Justices followed the law, citing the interracial marriage cases and the fact that gays/lesbians/transgendered are discriminated against and should be considered a suspect class. But here is the problem, the interracial marriage cases and the discrimination concerns are case law, judge made law, despite the fact that much if it may be made by the U.S. Supreme Court. But the marriage definition is constitutional law and that must and should remain at the top of the law pyramid.

Simply put Mr. Dorf, yes, the California Supreme Court acted precipitously and in a grossly counter majoritarian manner, against a recently passed amendment. It doesn't matter if the law is illogical in its ultimate result (there is a lot of law that is illogical), what matters is that the marriage definition was one of constitutional law and should have been upheld because of the manner of enacting it.

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