The California Supreme Court visits the Pottery Barn (revised)

Some of those who have been following the Propostion 8 drama may be puzzled as to why the California Supreme Court is reviewing the legitimacy of a Constitutional amendment or what grounds that may have to do so.

First, by taking this case now, the California Supreme Court avoids months or years of uncertainty as cases wend their way through the lower courts, since whatever they do, the matter is going to get appealed to the top anyway.

Also, since they created this mess, they need to clean it up (also known as the Pottery Barn rule).

Proposition 8 was submitted in April. The CA Supreme Court, knowing that the proposition was coming up for a November vote, overturned the existing ban on gay marriage in May, ruling that gay marriage was a “fundamental right”, thus putting Proposition 8 on a direct collision course with the court and enabling the California AG and opponents to rephrase the initiative as taking away the “right” of gay marriage.

This issue of amendment vs. revision points up the atypical feature of the California constitution and those of other states that allow constitutional amendment by plebiscite.

When you look at the U.S. Constitution and most organizational bylaws, these were adopted by a supermajority, and require supermajorities (at least 2/3rds) to amend them. The U.S Constitution has particularly high hurtles, not including a popular vote, which is why so few amendments have been successful. This supermajority legislative vote requirement is integral to what is her “revision”; a “major” change requires going through the revision process. In other words, “revision” corresponds to what we think of an “amendment” in reference to the U.S. Constitution

In addition to revision, there is also the provision for approving amendments to the CA constitution based on a popular vote, either by initiative with sufficient signatures or (I believe) by legislative action. These represent more minor changes – for instance, one of the requirements, if I remember correctly, is that an amendment can only deal with a single topic. Several initiatives have been thrown off or invalidated for violating that rule. Proposition 8 clearly does not suffer from that problem

In Michigan earlier this year, the court threw a stealth initiative off the ballot because it was clearly such a massive change in that state’s constitution that it had to go through the revision process. California has had only three initiatives thrown off in its history on the grounds that they had to go through the revision process.

What makes Prop 8 rather unusual is that it, in effect, constitutes a “judicial referendum” on the CA Supreme Court’s May ruling (strictly speaking, referendum refer to efforts to annul a legislative action). I’m not a legal historian, so I’m sure whether this kind of action has occurred before with other initiatives seeking to explicitly overturn a Court constitutional ruling via amending the CA constitution.

In any case, with the court having in my opinion overstepped its bounds in creating a fundamental right to gay marriage in the first place, in defiance of a previously expressed vote of Californians in 2000 to bar gay marriage (a statutory initiative, Prop 22, that was therefore able to be overturned as a violation of the CA constitution), the court now needs to determine whether its powers extend to overturning a second vote – this time a constitutional amendment – by declaring it a revision. By having called gay marriage a “fundamental right” it at least opens the door to such an argument by a second bootstrapping line of reason.

That is, having used a bootstrapping argument to necessitate their legalization of gay marriage (including a specious analogy to “separate but equal” to appropriate the language and history of the black civil rights movement), the court could now further bootstrap (otherwise called begging the question) by saying that since (by their edict) gay marriage is a “fundamental right” granted by the California constitution (a right that no California Supreme Court hitherto has recognized before four justices bootstrapped their way to discovering it) then the voters don’t have the right to abrogate that right just by a simple majority vote.

A very clever edifice, but one which is built on sand, I’m afraid. Or at least, built on the court’s arrogantly arrogating to itself the sole ability to determine such unenumerated fundamental rights.

The separation of powers argument against Prop 8 apparently is that judicial review trumps constitutional amendment (which picks up on the “judicial referendum” aspect I referred to earlier).

Thus having started down this path with its April decision, the court needs to further delineate the limits of its power – and face the consequences.

Of course, if the court overturns Proposition 8, then it risks the “nuclear” voter option – a recall campaign against the judges who overturned Proposition 8. That is the ultimate exercise of voter power, but one which I believe would be justified in this case as a necessary check by the citizenry against egregious judicial overreach.

(cross-posted at And Rightly So!)