Waldlaw Blog

Friday, November 14, 2008

Prop 8 in the California Supreme Court -- Update

Since I keep being asked what's happening in the Supreme Court, I thought I should post an update. First, if you are wondering what the case is about, refer back to my blog posting of November 7, where I summarize the basic arguments. I will not repeat those here. The first issue facing our Supreme Court is whether or not to even accept the challenge to Prop 8 as a case they will review. The Supreme Court gets petitions for review on a myriad of cases and issues, and they only actually agree to review a small number of those. They don't have to review any case they don't feel presents a sufficiently important issue, brought to them in an appropriate way. (This was the basis for their refusal to hear the challenge to Prop 8 brought before the election -- they did not consider the issue "ripe" for their review, since no one's marriage was even arguably invalidated and no constitutional right was implicated until Prop 8 actually passed.) In other words, there is no guarantee the California Supreme Court will actually review the validity of Prop 8 at this point -- that is the first hurdle the No on 8 folks have to get over. On November 10, the Anti-Defamation League, the Asian Law Caucus, Bet Tzedek Legal Services, the Japanese American Citizens League, and Public Counsel submitted what is called an amicus curiae letter to our Supreme Court. An amicus curiae letter is a letter to the court to let them know why the folks writing the letter think they should (or should not) accept a particular case for review. In this particular amicus letter, the groups describe themselves as "organizations devoted to obtaining and preserving justice, civil rights and equal protection of the laws both for members of groups that have suffered discrimination for long periods of California's history and for all Californians." They describe Prop 8 as "an extreme measure" that, they argue, "subverts" the fundamental nature of equal protection as "an abiding and permanent principle upon which the People have based their Constitution and a central tenet of democratic governance." They argue that "Proposition 8 is an extreme measure that subverts that fundamental principle [of equal protection] and eviscerates this Court's constitutional authority to interpret and enforce the requirement of equal protection. Amici, many of whose members have been subject to discriminatory laws and practices, write to urge the Court not to permit a bare majority of voters in a single election to work such a drastic alteration of our Constitutional scheme. Rather, the Court should hold that consistent with the restraints the People have imposed on themselves through the Constitution, such a dramatic step is a revision and not an amendment." Strong words, those. The fundamental issue here is what it means to be a Constitutional democracy. The use of the popular vote to make decisions is at the core of what it means to be a democracy. But what does it mean to be a Constitutional democracy, and what limitations does a Constitutional democracy place on majority rule? One of the best comments I have seen on this subject appeared in an on-line response to a column from today's New York Times. The column, entitled "What it Felt Like to be Equal," was written by Judith Warner. The comment came from a woman in South Africa, who wrote: "I live in South Africa, where the highest court ruled a couple of years ago that it is unconstitutional to deny gay and lesbian couples the right to marry. This ruling was not popular with most South Africans, but people here are slowly getting used to the idea. As a nation, we are learning the hard way that democracy does not equal majority rule. Rather, in our modern, constitutional democracy, the majority can never vote to take away the basic rights of a minority. I am surprised that this is allowed to happen in the USA, a country with a constitution that grants all its citizens equal protection under the law." Yup, that's the issue. What does it mean to have a Constitutional democracy, not just majority rule? And is Proposition 8 antithetical to the concept of a Constitutional democracy? Those are the questions our Supreme Court will have to answer if it accepts review of Prop 8.


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