Going courting.

Going courting.

Going courting.

The law, lawyers, and the court.
Sept. 9 2005 5:01 PM

Going Courting

How same-sex marriage opponents came to love the courts.

One state legislature down, 49 left to go.

So seemed the prospects of an intoxicated gay and lesbian rights movement when the California State Assembly voted last week to legalize same-sex marriage. For the first time in history, a democratically elected state legislature had voted to recognize the full citizenship of gays and lesbians by extending them the right to marry. Time for celebration?

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Not necessarily. Several significant obstacles remain. First, the smart money predicts that the legislation is a non-starter due to formidable state and federal constitutional defects. Second, in Gov. Schwarzenegger's view, the courts should settle this controversy, and not the legislature. This reluctant turn to the courts was certainly a surprise for proponents of same-sex marriage who had gladly welcomed both branches of government in their quest for equality. It sets up the question quite starkly: Who really ought to be deciding the legality of gay marriage—courts, legislatures, or the people themselves through referendum? And it highlights the hypocrisy of court bashers who turn to the courts when legislatures fail them.

The first obstacle to California's gay-marriage legislation centers around the existence of a ballot initiative, Proposition 22, presently being challenged in the California courts. Prop. 22 asserts that "[o]nly marriage between a man and a woman is valid or recognized in California." The question for the courts: Can such a requirement square with state and federal constitutions? How can such a distinction—recognizing opposite-sex marriage but not same-sex marriage—protect the constitutional rights of gays and lesbians to liberty and equality?

One possible, if not compelling, interpretation of Prop. 22 holds that the voters only intended it to ensure that California would not be required to recognize out-of-state same-sex marriages. In this view, the voters wanted to retain their prerogative to deal with the issue of same-sex marriage according to their own precepts, not those of voters in other states. It's difficult to see how banning out-of state same-sex marriages while permitting them in-state makes much sense, though. What sacrosanct in-state prerogatives are served? Further, banning out-of-state same-sex marriages, while preserving them in-state, flies in the face of our cherished notion that the United States is a union of collegial, quasi-sovereign states. Our reverence for union generally means that each state treats citizens of sister states as they treat their own citizens. Indeed, one federal constitutional provision requires that each state give "full faith and credit" to "public Acts, Records, and judicial Proceedings of every other state." And generally each state must grant citizens of other states the same privileges and immunities they grant their own citizens. Thus, simple commonsense and constitutional values militate against this rather bizarre interpretation of Proposition 22.

Further, as a matter of law, state initiatives generally trump legislative acts and therefore the California Assembly's decision is sure to be challenged in state courts. It is simply a slam dunk, according to conventional constitutional wisdom, that Prop. 22 will prevent the new legislation from prevailing. So, Californians in favor of same-sex marriage might be wise to postpone any celebration; at least until the status of the recently passed bill is settled in the courts, if it gets that far.

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Which brings us to the irony at the heart of this controversy: Opponents of same-sex marriage have excoriated the Massachusetts supreme judicial court for its decision in Goodridge v. Dept. of Public Health striking down a state law banning same-sex marriage. The opponents' fury was directed at what they saw as the arrogance and tyrannical usurpation of a court stepping on the legislature's toes and stifling the will of the electorate. Opponents were outraged that arrogant judges, on their own, decided to alter thousands of years of traditional marriage, the moral glue, in their view, that holds American society together. Despite their erroneous contention that one-man-one-woman marriage has such a grand lineage, or even that it exists universally today, opponents of change had a good constitutional argument that legislatures, not courts, should create fundamental change. So, then why did the governor of California decide that the courts should settle the issue? And why will strident opponents of same-sex marriage in all likelihood seek to overturn this law in the courts, if need be?

Schwarzenegger opposes same-sex marriage, though not equal rights for gays and lesbians. A good trick, if one can pull it off. He has announced that he will veto the bill, and as chief executive he has the constitutional and political authority to do so. But what if, contrary to what now appears likely, the governor had agreed to sign the bill? Or, what's more likely: What if a governor of another state in similar circumstances signs a similar bill? What will opponents of same-sex marriage do? Turn to the courts?

Consider again California. Although far from certain, had the governor acquiesced, it is extremely likely that the courts would have overturned the legislation because it conflicts with Prop. 22, especially since, according to state law, the latter trumps the former. So, there exists a conflict between the electorate's will as expressed in Proposition 22 and their will as expressed by their representatives in the recent legislation. But does self-government require favoring the electorate's will in a one-shot, frenzied, demagogued, initiative over the more reflective view of the representatives the people placed in power, re-elected, and in some cases recalled? Conventional wisdom insists that the very distinction between a republic and a democracy augurs in favor of the legislature. If opponents of same-sex marriage embrace legislative arbitration of this cultural controversy, why is it obvious that the initiative process should trump the legislature? The simple answer is that in all likelihood that's the law of California. Well, that settles the matter. Doesn't it?

Not by a long shot. Because there are two questions implicated in this controversy: First, what does the law counsel in this conflict between the legislature and the initiative process? Arguably, the answer is the latter. But the second and more relevant question is who ultimately gets to decide the answer to this first, and can opponents of same-sex marriage who have created a cottage industry out of court-bashing now truly insist that the courts are the appropriate forum to resolve this conflict?

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The obvious question is why the courts should be involved at all. Arguably, the people voted to keep their state free of same-sex marriage; yet, the people's representatives voted to permit it. Even emphasizing the important question of whether the assembly, according to state law, can pass such legislation without an initiative repealing Proposition 22, why shouldn't the people themselves be the final arbiters of this conflict? If a majority of California citizens oppose the bill, let them replace the errant legislators with ones more faithful to the people.

The other striking irony here is that majorities are powerful and typically don't need courts to fight their battles. By contrast, minorities are almost by definition weak at the ballot box, even if vocal, and the courts possess the power and authority to protect them from majority bullies. Indeed, protecting minorities is often advanced as the courts' raison d'etre. Thus, if courts should be involved in the same-sex controversy at all, it should be to defend proponents of same-sex marriage from conceivably biased majorities. A conscientious opponent of same-sex marriage should then ruefully approve of the Massachusetts court's role in protecting same-sex couples, even while rejecting the particular decision the court embraced. In Massachusetts, the court should decide because gays and lesbians are too weak to win in the legislature, and if the legislature denies them constitutionally protected rights, the courts must step in. By contrast, the powerful majority of Californians can easily flex their political muscles and settle the conflict between the legislature and Proposition 22 without involving the courts.

Opponents of same-sex marriage should appeal to the courts in both Massachusetts and California, or in neither state. Consistency does matter. What's so troubling is the apparent hypocrisy of lambasting the courts for usurping the legislature's role in one case, but being quite content with court involvement in the other. And if the California courts do decide this question, what will opponents say if the law is upheld and the ballot initiative struck down? Will they return to excoriating the courts? Conservatives, opposed to same-sex marriage, have created a mantra pillorying the left for being result-oriented—for running to courts when they lose in the legislature. These opponents, then, cannot, in good conscience, approve of the courts settling cultural conflicts when the courts give them a victory, but reject them when they lose.

Phyllis Schlafly in her recent book The Supremacists has inveighed against wayward courts deciding issues our constitutional design has delegated to state legislatures. Karen England of the Capitol Resource Institute has praised the governor for his decision ''to stop the runaway Legislature" in California. Ralph Waldo Emerson once said "a foolish consistency is the hobgoblin of little minds." Maybe so. But short of adopting consistency as the sole criterion for settling disputes, the public should hold its leaders' feet to the flames, insisting that, whatever else they do, they keep their stories straight. This means that those opposing same-sex marriage should choose, once and for all, which branch of government is the proper forum for deciding this issue, or embrace both and cease carping at the courts when they enter the controversy. What they should avoid, at all costs, is adjusting their constitutional stories for result-driven purposes. Elementary decency in public debate demands as much.