It’s often been said that we have a legal system, not a justice system. The difference being that the courts are supposed to enforce the law, even if the outcome is unjust. If the courts were to systematically ignore or rewrite the law when they feel it is unjust, we would live in a kritocracy, not a democracy. Democracy and rule of law are core principles of our form of government, and should not be set aside lightly.
There are, of course, times when the courts must set aside democracy if the rule of law is to be preserved. Our constitution contains numerous guarentees for individual rights against a tyranny of the majority. If congress were to pass a law banning gun ownership, or creating an established religion, or denying jury trials to criminal defendants, the courts have the power and the duty to overrule those laws on constitutional grounds. “Judicial activism” is often raised as a complaint any time the courts overturn a law the complainer liked, but it it a real problem only when the courts go beyond the proper interpretation of the constitution and established case law to impose their personal beliefs about what the law should be.
Today, the California Supreme Court ruled on the court challenges to Prop 8, an amendment to the California constitution to forbid state recognition of same-sex marriage. The ruling has two parts:
- Prop 8 is a valid amendment to the California constitution and will stand unless and until it is repealed through the amendment process.
- Same-sex marriages registered with California during the period the state recognized them (from the overturn of Prop 22 through the passage of Prop 8 ) will continue to be recognized by the state.
On the first issue, the court acted lawfully but not (in my opinion) justly. I voted against Prop 8. If an amendment to repeal Prop 8 appears on a ballot in the next election, I will almost certainly vote to repeal. But the California Supreme Court acted properly in decreeing that overturning Prop 8 must be left to voters. Unless a constitutional amendment exceeds the allowable scope of an amendment (this is a very high bar in California, which Prop 8 does not meet) or was not properly passed (there is no serious question of the legitimacy of the vote ratifying Prop 8), it cannot be unconstitutional. To quote the ruling:
In a sense, petitioners’ and the Attorney General’s complaint is that it is just too easy to amend the California Constitution through the initiative process. But it is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it. If the process for amending the Constitution is to be restricted — perhaps in the manner it was explicitly limited in an earlier version of our state Constitution, or as limited in the present-day constitutions of some of our sister states — this is an effort that the people themselves may undertake through the process of amending their Constitution in order to impose further limitations upon their own power of initiative.
On the second question, it seems the court steered the opposite course: created a just outcome in flat violation of the law. I have friends who got married to partners of the same sex in California, and I do not want to see their marriages nullified, but I don’t see any other plausible interpretation of the words of Prop 8:
Only marriage between a man and a woman is valid or recognized in California.
The court’s argument is that a law or amendment must be explicitly retroactive in order to apply retroactively, and (in the court’s opinion) Prop 8 does not do that. If Prop 8 said that California may not solemnize a marriage unless it’s between a man and a woman, the court would have a point. But given the actual wording of Prop 8, I don’t see how that doesn’t invalidate existing same-sex marriages in the eyes of the state; they were valid and recognized until Prop 8 passed, and now they aren’t.
The full text of the Court’s opinion can be found here. The reasoning for continuing to recognize existing same-sex marriages is in Section VI of the majority opinion, starting on page 128.
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Eric,
IANAL, are there other examples of courts requiring explicit denials of grandfathered status?
Today’s decision does cite some examples. I don’t know of others off the top of my head, but it does look like a valid legal principle. I’m merely questioning its application here, as I can’t reconcile a non-retroactive interpretation of Prop 8 with the plain English meaning of the text of the amendment.
Eric,
I disagree with you on the unjust nature of Prop 8. Indeed, it’s more than just, it’s moral. And the people of California agree. Indeed, most Americans agree.
Of course, it’s always the preopgative of the minority to cry “This is unjust!” when they don’t get their way. You talk of the tyranny of the majority.
There’s also the tyranny of the minority. We’re not an oligarchy and the position of the minority isn’t inheriently more just or moral simply because it is held by few. You seem to imply that it is.
So, wrap yourself in the flag if injustice. A moral good was accomplished and you’re spitting on it.
I do agree with you on the retroactive nature of Prop 8. I think the court’s bizzare ruling was simply a way to pull what they felt was a good out of what they felt was a bad they had no choice but to rule in favor of. The wording of the amendment makes it clear what a marriage is. There’s no room for deviation.
A little judicial activism slipped under the door. What else is new…
There’s also the tyranny of the minority. We’re not an oligarchy and the position of the minority isn’t inheriently more just or moral simply because it is held by few. You seem to imply that it is.
That was not my intention. I absolutely agree with you on the general principle that tyranny of the minority is a real problem, which is why I said things like:
“Democracy and rule of law are core principles of our form of government, and should not be set aside lightly”
and
“But the California Supreme Court acted properly in decreeing that overturning Prop 8 must be left to voters.”
When I say that Prop 8 is unjust, that is a personal value judgement which drove me to vote against it at the polls. You have every right to disagree and to vote the opposite way, and so long as the majority agrees with you, that is what the law should say.
Kevin D: you said, “it’s more than just, it’s moral”
Perhaps you can enlighten me as to how there is a moral argument here. The gender of a couple matters when one seeks to make health care decisions for the other?
The gender of a couple matters when one partner inherits the house they bought together?
The arguments against same-sex marriage are certainly religious and traditional, but I can see no way in which it can be said to be “morally wrong” to call a union by one name instead of another. Why, exactly, is it moral for one group to be denied equal protection under the law based ok which genitals they posess?
Also, a question: what happens to a marriage in which one partner changes sex after marriage?
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