Same-sex marriage case sparks constitutional debate

by Roger Brigham

EDGE Media Network Contributor

Wednesday January 28, 2009

The battle over the validity of Proposition 8 currently before the California Supreme Court began as a fight over the future of same-sex marriage. But in fiery rhetoric, dozens of court papers that have been filed since the November passage of Prop 8, which stripped away marriage equality, are asking the Court to clarify much deeper questions over protections of basic human rights, the limits on the majority's ability to do what it pleases, and the murky distinctions between the constitutional amendment and revision process.

More than five dozen amicus "friend of the court" briefs have been filed this month with the court and drawn responses from Attorney General Jerry Brown and attorneys for both sides of the Prop 8 debate. Prop 8 was a voter initiative that passed with 52 percent of the popular vote that would amend the Constitution to call upon California to recognize only marriages between a man and a woman. The question is whether such a fundamental issue can be addressed in a simple amendment, or, as the Prop 8 opponents and Brown contend, must go through the more arduous revision process, requiring a two-thirds passage in both houses of the state legislature, and then passage in a popular vote.

Arguing for the court to uphold Prop 8, state Sen. Dennis Hollingsworth (R-San Diego) refers to an "epic outpouring of amicus briefs" by attorneys who "have impressively rallied" to strike down Prop 8 and said the attorney general "expressed the decidedly unorthodox view that natural law calls for this Court to tear asunder the judgment of the people. Nothing approximates that unprecedented legal epiphany of the State's chief lawyer."

That call to rule that Prop 8 is an unconstitutional revision is a "siren song" and "profoundly misguided" according to Hollingsworth.

"We will be blunt," he wrote. "Theirs is a call for constitutional revolution."

Of the 60 some briefs regarding Prop 8, only 11 were in support of upholding the initiative. In a backhanded reference to the support of Prop 8 in rural inland areas and its opposition in the major coastal areas, Hollingsworth wrote, "This Court should faithfully abide by the will of the people -- even in the face of strong emotions swirling around the State's major cities -- as to the meaning of marriage. Those sincerely-held (sic) emotions should play their way out in the ongoing democratic conversation about the future of marriage in a democratic society -- where we the people govern."

Brown countered that the arguments in support of upholding Prop 8 "would turn California constitutionalism on its head. As these amici would have it, the Constitution's foundational guarantee of individual rights is no guarantee at all, and a small number of petitioners (amounting to eight percent of the voters) have the power--for any reason whatsoever--to put the fundamental rights of a minority group to a popular vote....

The initiative process 'was intended to allow voters to bypass a foot-dragging legislature, not to oppress vulnerable groups or strip courts of their traditional role of protecting minority rights.'

"The initiative power is, indeed, an expression of the People's sovereignty, but it is not the fullest expression of that sovereignty. The People express their full sovereignty when they act in convention.... The People express a lesser scope of sovereignty in the initiative process....

"As certain of amici law professors explain, the 1911 amendment creating the initiative process 'was intended to allow voters to bypass a foot-dragging legislature, not to oppress vulnerable groups or strip courts of their traditional role of protecting minority rights.'"

Calling the argument's saying Prop 8 was an unconstitutional amendment an "anti-democratic broadside," Hollingsworth dissed Brown's response by writing that most of his brief makes it "pellucidly clear" that Prop 8 was properly enacted. "In contrast," he wrote, "the Attorney General's idiosyncratic natural rights argument, and amici's and petitioners' variations on that newly-introduced (sic) argument, are entirely devoid or precedential support. They should be rejected."

Attorneys petitioning to invalidate Prop 8 dismissed Prop 8 supporters' contention "that this case presents a conflict between the sovereignty of the people and equal protection. That asserted conflict does not, in fact, exist. Petitioners agree that the will of the people, as expressed in our State's Constitution, must prevail. But it was the people of California themselves who established the distinction between revisions and amendments ... and who have 'scrupulously preserved' it throughout California's history."

The attorneys said they were not "seeking to go outside the Constitution, invoke natural law, appeal to judicial activism, promote any particular social ideology, or thwart the expressed will of the people. Rather, Petitioners seek to enforce an express provision of our California that reflect the people's considered decision to restrain the power of popular majorities where foundational constitutional principles are at stake."

The response filed by San Francisco said the briefs supporting Prop 8 "present a vision of the California Constitution that is remarkable both for its audacity and its consequences. Under their vision, anybody may propose an initiative amendment that strips away any fundamental right protected by the California Constitution from any class of people.... And if a bare majority of voters enacts it, the judiciary is powerless to invalidate it. Fortunately, this vision is not supported by the provisions of the California Constitution.

"Because it is the ultimate arbiter of the meaning of our Constitution, this Court has an obligation to enforce the constitutional provisions prohibiting voters from revising the Constitution through the initiative process. Any failure to do so would flout the ultimate will of the people -- who established this distinction and the limitations that go with it when they created our Constitution.... By stripping a fundamental right away from a suspect class, Proposition 8 violates the Constitution's core commitment to basic human rights -- including its commitment to protecting inalienable rights and equality. Such a violation should not be permitted.... Any other conclusion would make the stark vision of amici curiae a reality."

Papers filed in the court case may be found here. A date for oral arguments has not yet been set.

Roger Brigham, a freelance writer and communications consultant, is the San Francisco Editor of EDGE. He lives in Oakland with his husband, Eduardo.