The landmark California Supreme Court decision on marriage is a teachable moment for us to understand the role of the courts and their place along side the other branches of government and even the “will of the people” as expressed in ballot initiatives.
The rule of law in our society and the can easily get obscured in the often heated discussions and the frame that the right wing likes to use whenever they do not like a decision—by accusing courts of legislating.
And it comes from folks who should know better but without thinking have to put it in the old frame. The best example comes from Robert Villines, the leader of the Republicans in the legislature. From the Sacramento Bee, we read Villines reacting to the Court’s decision with this zinger:
“I am very disappointed that the California Supreme Court, by the narrowest of margins, would allow their own personal partisan views to get in the way of their duty to uphold the rule of law by thwarting the will of the overwhelming majority of Californians who voted in support of Proposition 22.
“Fortunately, more than 1 million Californians have signed ballot petitions to place a constitutional amendment before the voters this November that will write into the state Constitution that marriage should be between one man and one woman. I am confident that the people of California will again overwhelmingly vote to preserve and protect traditional marriage.
“I hope that once this constitutional amendment becomes law in November, the Supreme Court will resume its appropriate role of interpreting the law, and stop legislating from the bench.” [Emphasis added]
Since 6 of the 7 Justices are Republicans, appointed by Republican governors—including 3 of the 4 in the majority, this is either ignorant or just demagoguery. What is the partisan agenda of the Republican Chief Justice Ronal George who wrote the court’s decision and who was appointed by Republican Pete Wilson? Or that of Kathryn Werdegar, another registered Republican, also appointed by Wilson? Or that Republican Justice Joyce Kennard, appointed by that Republican Governor George Deukmejian? Or are these remarks directed at the sole Democrat on the Court, Carlos Moreno who voted with his three Republican colleagues for the decision?
The Court was doing its job in our system of government. They were interpreting the California Constitution. They had no more choice to decide this case the opposite way—or to duck it (judicial restraint as Dan Weintraub characterized one of the dissenters in this morning’s Bee) than they could have or should have in deciding that California’s laws 60 years ago against interracial marriage were unconstitutional or throwing out the repeal of the Rumford Fair Housing Law that the voters approved in a ballot referendum in the 1960s.
The fact that Proposition 22, passed in 2000 by 61% to 39% is not controlling as to the Court’s proper decision on the constitutional questions the court had to decide this last week. It wasn’t when the California Supreme Court struck down Proposition 14 to make it legal to discriminate on the basis of race in deciding who to sell one’s house to—a very emotional and politically risky move for the court back then—for those who remember.
It’s a basic principle of law that when the state’s constitution conflicts with a statute—even one passed by the voters—that the constitution trumps the statute. Proposition 22 was a statute and the court would be shirking its duty if it followed an unconstitutional statute just for political reasons or expediency.
Maybe Villines and company are trying to make this into a partisan political issue—to throw red meat out to their base and whip up the vote in November. He probably spoke before reading the decision—as have most of those expressing an opinion—but at least he should get his facts right. And what he is pushing is not particularly the kind of rebranding our Republican Governor, Arnold Schwarzenegger, has in mind for his party. He is urging voters to reject any ballot proposition to overturn the Court’s decision. And he supports the Court. A position I believe most Californians will take in November.