[new look!]

As the legal challenges to Prop 8 piled up last week, I started reading up on them, and I'm betting the California Supreme Court is wishing they'd declined to hear the original marriage cases. They've already agreed to hear the challenges, which focus on the idea of an "amendment" vs. a "revision" to the California Constitution. An amendment can pass with a simple majority, but a revision requires a 2/3 majority of the Legislature, which will and would never succeed with a ban on gay marriage. (For those of you playing along at home, it takes a 2/3 majority for a ballot initiative that increases or adds taxes, but just a simple majority to amend the Constitution. I hate California government so very, very much.) Naturally, what constitutes an amendment versus a revision is described exactly nowhere, and there have only been a few precedents, none of which make the current issue clear-cut: Stephen Bainbridge has an extended commentary.

So here's a money quote from In Re Marriage Cases:

"[T]he right to marry is not properly viewed simply as a benefit or privilege that a government may establish or abolish as it sees fit, but rather that the right constitutes a basic civil or human right of all people."

• Refuse to hear the challenges, leaving Prop 8 in place and establishing the assumption that a simple majority can deprive a suspect class of fundamental rights. They've agreed to hear the challenges, so we're past this one.

• Hear the challenges.
  • Declare that Prop 8 was just an amendment. This has the same immediate effect as refusing to hear the challenges, plus leaving a fairly dangerous court precedent in place (since it's now not just assumed that you can deprive a suspect class of fundamental rights, but explicitly decided by the Court).

  • Decide that Prop 8 was a revision, invalidating it. This seems like it should be a no-brainer, given In Re Marriage Cases, right? The Court has said both that marriage is a basic right, and that gays are a protected class.

The problem is that technically, the "people of California" have twice voted to ban gay marriage, albeit with slimmer and slimmer margins: Prop 22 passed 61-39 in 2000, compared to 52-48 for Prop 8 (and that was in response to actual gay marriage happening, which indicates that a lot of people discovered that gay marriage doesn't actually kill kittens or anything). Thanks to Republicans, courts already take a lot of heat for their "activism" any time they expand people's rights. A lot of people who weren't even there are still cranky about Brown v. Board of Education. So courts walk a tricky line. There was a great radio special a few years ago on the anniversary of Brown, talking about the role of courts in societal change. Courts don't have any real enforcement power, there's no security force to go out and enforce decisions or orders, as we've discovered with BushCo, who blithely ignores court orders it finds inconvenient. (One surprising thing to learn is that the United States Supreme Court is actually constituted by Congress, starting with the Judiciary Act of 1789, and the number of justices and associated circuit courts fluctuated until 1869.) The power of courts lies partly in society's agreement to honor their decisions, but more importantly, on the court's power of persuasion. Sometimes society needs a kick in the pants to get moving, but high courts try not to do that too soon or too often. Lawrence v. Texas is a more recent example, less loaded than segregation: the Supreme Court, minus Rehnquist and the expected asshats, said a variety of things, but amounting to "This is silly, let's all grow up and acknowledge the government has no vested interest in whether or not people are having oral sex in their homes".

Prop 8 passed based on a load of misinformation. First, a lot of minorities think homosexuality is a choice, so given that, why should they have any extra rights? And there was a huge campaign of lies from the Mormon Church and others, claiming that churches that didn't perform gay marriages would lose their tax-exempt status, and that gay marriage would somehow be "taught in schools". (I don't know what that means. I didn't learn about marriage in school.) And, of course, judges in California can be removed from office. (EDIT: actually, they're appointed to office and must be reconfirmed by the electorate at the end of each 12-year terms. The anti-gay folks seem to think the judges can be recalled like elected officials; I think they might be mistaken.)

So I dunno. Maybe they thought it all through beforehand. Or maybe they've kept trying to do the right thing and wound up painting themselves into a corner, in a situation that for them is a crap sandwich from all sides.