Liberté, égalité, fraternité

Yesterday the Supreme Court considered the question of whether California’s Proposition 8 ban on same sex marriage was constitutional. SCOTUSblog reads the tea leaves and reviews the legal arguments:

“The case argued Tuesday — Hollingsworth v. Perry (12-144) — was only the first of two, but it is the one that had the most potential for getting to the question of who may marry.Wednesday’s argument, the case of United States v. Windsor(12-307), involves same-sex couples who are already legally married, and the issue before the Court is whether the federal government can legally deny them all of the federal benefits that go with marriage.  But a decision in that case might not resolve the basic issue of equal access to marriage…

The legal consequences of avoiding a ruling on the constitutionality of Proposition 8 would vary sharply, depending upon the route the Court chose to that outcome. If the case were dismissed on the theory that the grant of review was a mistake, that would mean that the Ninth Circuit’s California-only decision would become final and fully effective, that court would remove the temporary order blocking marriages, and same-sex couples could resume getting married in the state.

I am not a lawyer, and will not hazard a guess on how the court will rule – particularly after the surprising SCOTUS ruling on the Affordable Care Act.

The original ruling that led to this case occurred in a California federal court in August of 2010. I wrote a post ruminating on the constitutional and philosophical question of a federal judge negating the wishes of a majority of California voters. Rereading it now, I think it holds up pretty well. I never did get around to posting it on the Donk, so thought I’d rectify that oversight. Since this is a three year old post, some of the links may no longer function. Proceed at your own risk.

Crosspost from The Dividist Papers – August 10, 2010:

In the wake of Judge Vaughn Walker finding California’s Prop 8 to be unconstitutional, we are treated to the predictable spectacle of hypocrisy on parade from politicos across the political spectrum including Newt Gingrich and Barack Obama.

The most compelling arguments against Judge Walker’s ruling are premised on the notion that it violated majority rule. The argument takes a variety of forms: that a court overreaches when it substitutes its judgment for the clearly expressed judgment of a majority of voters; that it would be tactically better for same sex marriage proponents if was legalized by an electoral or legislative majority at either a state or federal level rather than judicial fiat; that it disrespects constitutional sanctity and founder’s intent for majority rule. The argument is getting serious consideration across the blogosphere – some examples include The Crossed Pond, Ordinary Gentlemen, Andrew Sullivan, Allahpundit, Balloon Juice, Ann Althouse, Volokh Conspiracy, and others.

I am sympathetic to the preference for individual rights being protected by a popular majority and/or legislature as opposed to judicial means. Who would not? That said, I don’t think there is any basis for saying it is a decision that should not have been made by a judge. Let me hasten to state that I am not making a legal argument, as I am not qualified to do so, let us call this a constitutional/philosophical observation.

Our Constitution implicitly and explicitly established a hierarchy of rights and powers. Federal powers are specifically enumerated, with the power not delegated to the United States government by the Constitution reserved to the States. This clearly indicates a general preference for state’s rights and powers. The preference for the superiority of majority rule can also be gleaned in the order that the branches of government are enumerated in the articles of the Constitution. First the democratic People’s House, then the republican Senate, then the executive (selected by a non-majoritarian electoral college), then the unelected judiciary. All would argue for the founder’s obvious preference for and superiority of democratic majority decisions, and the state’s exercise of power to that of the federal government.

But – then there is the Bill of Rights, without which the Constitution would never have been ratified. The enumeration of rights in the first 10 amendments is informed by a self-evident truth that all individuals are imbued with inalienable rights to life, liberty and pursuit of happiness – rights that are inalienable by kings, rights that are inalienable by majority rule. These rights are at the pinnacle of and/or transcend the entire hierarchy of preference of power found in the Constitution. The fundamental assertion of the Bill of Rights is that no power may abridge these rights – including a democratic majority at either the state or federal level. All branches of the federal government should regard protection of these rights against encroachment – regardless of source – as a primary responsibility.

Who better to speak to the limits of majority rule, than the architect of the Constitution – James Madison? In Federalist #10 he speaks directly to protecting rights from the majority:

When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. Let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind.

By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression.”

And again, in his speech at the Constitutional Convention introducing the Bill of Rights for consideration, Madison is clear about the limits of majority rule:

“But whatever may be the form which the several States have adopted in making declarations in favor of particular rights, the great object in view is to limit and qualify the powers of Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode. They point these exceptions sometimes against the abuse of the Executive power, sometimes against the Legislative, and, in some cases, against the community itself; or, in other words, against the majority in favor of the minority.

In our Government it is, perhaps, less necessary to guard against the abuse in the Executive Department than any other; because it is not the stronger branch of the system, but the weaker: It therefore must be leveled against the Legislative, for it is the most powerful, and most likely to be abused, because it is under the least control. Hence, so far as a declaration of rights can tend to prevent the exercise of undue power, it cannot be doubted but such declaration is proper. But I confess that I do conceive, that in a Government modified like this of the United States, the great danger lies rather in the abuse of the community than in the Legislative body. The prescriptions in favor of liberty ought to be leveled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power. But this is not found in either the Executive or Legislative departments of Government, but in the body of the people, operating by the majority against the minority.

So what should happen when the majority acts against a minority, as in Proposition 8? Particularly when we see the executive branch make a craven political decision to not act, and legislators at both the federal and state level unwilling to act. In such a case, it seems obvious that the judiciary is the last firewall to protect our civil liberties, and it is only the judiciary that can preserve minority rights against the will of the majority. In such a case, not only is judicial action acceptable, it is necessary, even when it means substituting judicial fiat for democratic majority or legislative action. Self evident inalienable individual rights should trump the majority every time.

I suppose that one can argue that same sex marriage does not fall into the category of a self evident inalienable right to pursue happiness. This is where we probably cross the line from a constitutional argument to a legal argument. But on the broader question – whether a judge should substitute their judgment for the judgment of a majority? Yes they should. I was pleased with Judge Walker’s decision, as I saw Prop 8 as a clear attempt by the majority to impinge on the rights of a minority. Judge Vaughn Walker did his job and did it well.

Politics SCOTUS, Prop 8, Madison and Majority Rule