Separate concurrence and dissent

[solarbird]

I've been reading the separate concurrence and the dissent on the Proposition 8 ruling, and I want to quote from both.

First, the separate concurrence on the decision, but dissent on the reasoning, from Justice Werdegar. He agrees with the ruling on technical grounds, but savages the rationale given by the majority for making that decision - all the parts I've been quoting and talking about. Here are a few excerpts; it's worth reading in its entirety, and is in the same file I linked before:

The majority purports to find in this court’s prior decisions a definition of the term "revision" — one focused on governmental structure and organization — that categorically excludes Proposition 8 and thus avoids the daunting task of reconciling with our constitutional tradition a voter initiative clearly motivated at least in part by group bias. In fact our prior decisions do not establish the majority’s definition, nor does it find support in the text or history of the Constitution. The drafters of our Constitution never imagined, nor would they have approved, a rule that gives the foundational principles of social organization in free societies, such as equal protection, less protection from hasty, unconsidered change than principles of governmental organization. ...

Until today, the court has never held that a constitutional initiative was an amendment rather than a revision because it affected only individual rights rather than governmental organization. ... We did not in these cases hold, nor have we before today ever held, that constitutional amendments affecting only individual liberties are categorically exempt from the procedural requirements for constitutional revision.

Justice Werdegar then concludes that the infringement upon rights of a minority - which he, like the majority, acknowledges is an infringement upon rights of a minority - is narrow enough without the majority's ruling to qualify as an amendment rather than a revision.

Justice Moreno's dissent raises the same concerns, only much more strongly, and are the basis for his outright dissent; his opinion is that the equal-protection clause is fundamental to the entire California constitution, and that therefore, any exceptions carved into it - as all the opinions issued agree happen under Proposition 8 - is therefore a fundamental change to the document. He quotes extensively from California Constitutional conventions on the topic, but I omit those for brevity:

[Equal protection] is not so much a discrete constitutional right as it is a basic constitutional principle that guides all legislation and compels the will of the majority to be tempered by justice. ... even a narrow and limited exception to the promise of full equality strikes at the core of, and thus fundamentally alters, the guarantee of equal treatment that has pervaded the California Constitution since 1849. Promising equal treatment to some is fundamentally different from promising equal treatment to all....

It is apparent... that limiting the definition of revision only to changes in the structure of government necessarily leads to the untenable conclusion that even the most drastic and far-reaching changes to basic principles of our government do not constitute revisions so long as they do not alter the governmental framework. Counsel for interveners candidly admitted at oral argument that, in his view, the equal protection clause of the California Constitution could be repealed altogether by an amendment passed by a bare majority of voters through the initiative process. [Bold added for emphasis]

...Under the majority’s reasoning, California’s voters could permissibly amend the state Constitution to limit Catholics’ right to freely exercise their religious beliefs (Cal. Const., art. I, § 4), condition African-Americans’ right to vote on their ownership of real property (id., § 22), or strip women of the right to enter into or pursue a business or profession (id., § 8). While the federal Constitution would likely bar these initiatives, the California Constitution is intended to operate independently of (art. I, § 24), and in some cases more broadly than (see, e.g., Fashion Valley Mall v. National Labor Relations Board 2007) 42 Cal.4th 850, 857-858), its federal counterpart.

The majority’s holding essentially strips the state Constitution of its independent vitality in protecting the fundamental rights of suspect classes... attack[ing] the very core of the equal protection principle. ... The majority’s holding is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution.

This could not have been the intent of those who devised and enacted the initiative process. In my view, the aim of Proposition 8 and all similar initiative measures that seek to alter the California Constitution to deny a fundamental right to a group that has historically been subject to discrimination on the basis of a suspect classification, violates the essence of the equal protection clause of the California Constitution and fundamentally alters its scope and meaning. Such a change cannot be accomplished through the initiative process by a simple amendment to our Constitution enacted by a bare majority of the voters; it must be accomplished, if at all, by a constitutional revision to modify the equal protection clause to protect some, rather than all, similarly situated persons. I would therefore hold that Proposition 8 is not a lawful amendment of the California Constitution.

So really, the majority opinion, separate concurrence, and dissent all agree that this puts all California constitutional rights questions up to majority vote. Fun times!

Comments

[llachglin.livejournal.com]

Chilling.

Maybe the worst part is that if this decision prompts a rewrite of the constitution to prevent this kind of thing in the future, the ruling against marriage equality will probably be harder to repeal. Tactically it seems like the best course is to use the broken constitution to repeal Prop 8 in 2010 or 2012 and then change the constitution after that is accomplished.

Or maybe they could scrap the constitution and just write equality into the new one.

[solarbird]

Indeed - but, well, there you are. Using the fags to demonstrate what you could do to somebody, then changing the rules to protect everybody else? The deuce you say.

[baba-o-reptile.livejournal.com]

This is some BULL@$#%...

I just... Maybe I'm stupid, naive, whatever. I just ... I never thought this could happen in CA. I live here; while not native have been here nearly a decade.

I don't know any of the people who voted for prop 8. I don't ... well, I can't claim to understand constitutional law, but I don't get who or what the SC judges are trying to uphold or protect.

Maybe I'm stupid, but I feel blindsided by this, in a viscerally, where'd-I-wake-up-this-morning way.

[solarbird]

The question before the court was not the substance of the matter, really, but whether the initiative as passed constituted a constitutional amendment (a limited change) or a revision (a large-scale change). If the initiative was an amendment, then it was passed legally. If the initiative was a revision, then it wasn't passed legally, and would've first needed to get a 2/3 "yes" vote in the California legislature, which it most certainly would not have received. The question was not whether this fit the principles of the constitution as previously written (before this amendment), or whether this was a good idea or a bad idea.

In short, the question before the court was fundamentally technical.

The majority made it clear that they think this was fundamentally an amendment, and not a revision, and therefore legally adopted. The majority opinion also went to great lengths to point out that not only was a right curtailed, it was curtailed for a specific suspect group, and that this wasn't just for the fags. You could do this to anybody under the California constitutional amendment process. The dissenting supporting opinion agrees that you could do this to anybody under the majority's ruling and argues with it on that basis - but then goes ahead and agrees with the decision, which is a bit of "but it should just be okay for the fags!" ruling in my opinion, but I am perhaps a little jaded.

The majority also pointed out in detail how other states prevent this sort of thing from happening. I do not think this was an accident.

So what they're upholding is the process as currently written, which is what they are legally bound to do; constitutional law is the standard against which other laws are judged; it can't be overturned by a court because it itself is the standard. That's the whole point, really.

(Now, you can get into cases where constitutional law could conflict with itself, and there's no order-of-adoption precedence, in which case the situation gets fuzzy. But that's not the situation here.)

I would not go so far, however, as to say the majority protected anything here, because it looks to me like they rather went out of their way to make their ruling as scary to everybody else as possible in its implications, and to point out ways to make the situation less scary. That strikes me as functionally editorial. It may have been intended, as I implied above, to prompt a revision of this process.

(And in terms of 'does this conflict with the rest of the constitution as previously written,' that question is irrelevant, as later changes override earlier changes, and this has been true throughout ... pretty much everybody's modern legal history in the West. Note that this is in direct contrast to, say, some examples of middle-eastern political theory, c.f. Sharia law and the Islamic Republic of Iran.)