December 06, 2010

2012 and CA Gay Marriage Case

The U.S. Court of Appeals for the Ninth Circuit heard oral argument today in Perry v. Schwarzenegger, the California same-sex marriage case that will likely reach the Supreme Court. A 3-judge panel of the Ninth Circuit is reviewing U.S District Court Judge Vaughn Walker’s controversial ruling striking down Proposition 8, a 2008 ballot initiative in which California voters amended the state constitution to define marriage as “between a man and a woman.”

This summer, Walker ruled that Proposition 8 violates the U.S. Constitution because the “purported rationales [for a traditional definition of marriage] are nothing more than post-hoc justifications" by Prop 8’s proponents. Despite the fact that those rationales have justified a traditional definition of marriage for thousands of years, the panel will very likely affirm Judge Walker’s ruling – after rejecting a challenge to the appellants’ standing –given the activist records of two of the panel’s three judges. Assuming Judge Walker is affirmed, the liberal Ninth Circuit will likely decline to rehear the case en banc, i.e., before an 11-judge panel.

That would set the stage for the case to reach the U.S. Supreme Court in time for oral argument early in 2012 and a decision by June 2012. That timing will make both gay marriage and judicial activism major issues in the 2012 presidential and Senate election campaigns as Perry v. Schwarzenegger heads towards an historic climax. The importance of the President’s power to nominate and the Senate’s power to confirm Supreme Court Justices will be underscored by the unfolding drama in the High Court.

In the nearer term, the 3-judge panel’s focus on and seeming sympathy for two particular arguments today indicate that the judges are looking for a way to affirm the district court decision with a narrower rationale than Walker’s conclusion that the Fourteenth Amendment essentially compels the recognition of same-sex marriage. The arguments are 1) that Perry presents an especially compelling set of facts because Proposition 8 eliminated an existing state constitutional right to same-sex marriage, and 2) that there is no rational basis for California’s existing policy of giving homosexual couples, via civil union, all the benefits of marriage save for the name.

At a time when the number one goal of the purveyors of judicial activism is the discovery of a general right to same-sex marriage in the U.S. Constitution, the panel’s inclination to find narrower grounds might have been reassuring. But, in fact, the grounds the panel focused on today offer little solace to critics of judicial activism and gay marriage; instead, the arguments have troubling implications and border on the disingenuous.

The argument that a state cannot withhold “marriage” from gay couples, once it has granted them all the benefits of marriage, amounts to little more than a game of “got you.” If the Ninth Circuit rules on that basis, it would essentially be telling the people of California that, because they were open-minded and compromising enough to grant all the benefits of marriage to same-sex unions, they must now accept the one element they explicitly rejected – that is, the designation of same-sex unions as “marriages.”

This slap in the faces of Californians would provide a perverse incentive for other states to ensure that all the benefits of marriage are not granted to same-sex couples. That would be a shame, because unlike gay marriage, robust civil unions have broad enough popular support to potentially be a compromise all fifty states could live with.

As for the existing “right” to same-sex marriage eliminated by Proposition 8, it was both short-lived and the result of blatant judicial activism. It was quickly overruled by Californians when they approved Prop 8 just six months after the California Supreme Court purported to find a right to gay marriage in the California Constitution. As we said at the time of the Court’s May 2008 decision,
“In the lofty but vacuous language typical of judicial activism, the [California Supreme Court] discovered a right to have one’s ‘family relationship accorded dignity and respect equal to that accorded other officially recognized families.’ Whatever one thinks of this new right – which would seemingly apply to polygamous families as well – it is nowhere to be found in the California Constitution.”
Were the Ninth Circuit to use this short-lived “right” as the grounds for its decision, it would elevate and enshrine the state Supreme Court’s original act of judicial activism both by insulating it from review by California voters – who rejected it with their approval of Prop 8 – and giving it nationwide reach by using it as the basis for a decision under federal law. Such bootstrapping of federal judicial activism on top of state judicial activism would be intellectually dishonest and would encourage activist state courts to flaunt the will of the voters.


December 05, 2010

The Case for Engaged Justices

George Will is on his game today.
In our democracy, the legislature's policymaking power "though unrivaled, is not unlimited." The Constitution reigns supreme: "There must remain judicially enforceable constraints on legislative actions that are irreconcilable with constitutional commands."

Thus a legislature's judgment that a measure is desirable does not relieve a court of the duty to judge whether it is constitutional. "The political branches decide if laws pass; courts decide if laws pass muster," wrote Willett. Judges must recognize that legislators' policymaking primacy "is not constitutional carte blanche to regulate all spheres of everyday life; pre-eminence does not equal omnipotence."

What Willett says of the states' police power is applicable to Congress's power under the commerce clause: "When police power becomes a convenient talisman waved to short-circuit our constitutional design, deference devolves into dereliction." And: "If legislators come to believe that police power is an ever-present constitutional trump card they can play whenever it suits them, overreaching is inexorable."

The judiciary's role as referee of constitutional disputes is, Willett says, "confined yet consequential." But, "If judicial review means anything, it is that judicial restraint does not allow everything." And there can come a "constitutional tipping point" where, by excessive deference to a legislature in the face of a constitutional limitation, "adjudication more resembles abdication." Then a state's police power (or Congress's power under the commerce clause) can "extinguish constitutional liberties with nonchalance."