Central to today's Ninth Circuit Court finding that Proposition 8 is unconstitutional are the peculiarities of California law involving propositions, and this: "Fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights."
The relevant peculiarities of California law involve our system of voter initiatives (or propositions), that can be of two different types. Some propositions require fewer signatures to get on the ballot and are subordinate to the state constitution – if passed by the voters, the constitution can still trump such a law. Other propositions, let's call them super-propositions, require more signatures to get on the ballot and are of equal standing with the constitution – like an amendment or change to said constitution. California courts would have a tough time overturning such a law on state constitutional grounds, because such a law would be part of that very constitution.
Aside from the two different kinds of propositions, the legal timeline is also quite important. The Ninth Circuit panel made clear that, while a state could extend rights or benefits and then reverse course without violating the Constitution, a state cannot take away a right or benefit for only a particular class of individuals without a legitimate reason, lest it violate Equal Protection; and animus towards a group of people is not a legitimate reason.
Now, here's the timeline: a regular proposition outlawed same sex marriage in California back in the day; the California Supreme Court found that law unconstitutional; so the proponents of the exclusivity of heterosexual marriage then got a super-proposition passed (Proposition 8). While Prop 8 was a super-proposition and thus could not be found unconstitutional under the California constitution, the Ninth Circuit panel found it would be unconstitutional under the U.S. Constitution. The Federal Constitution outlawed this voter-approved measure because it had no purpose beyond taking something away from a certain group of people without any legitimate reason. And the something it took away was a fundamental right – a right that had already been recognized as extending to same sex couples by the California Supreme Court in its earlier decision to strike down the regular proposition.
What if that right had not been previously recognized? In essence, what if the California Supreme Court hadn't overturned the first, regular proposition? That earlier law could still have been challenged in federal court. Under the 9th Circuit's analysis, a federal court could not have found the earlier proposition unconstitutional on these same Equal Protection grounds. It could be argued that the right never existed, so no right was taken away.
What if a super-proposition had been passed in the very beginning, describing marriage as between a man and a woman? California courts would probably not have found this unconstitutional, because the proposition would have become part of that very constitution which the court was charged with interpreting. If challenged in federal court, it would likely be seen as defining marriage in California, rather than taking away a right already recognized by state courts.
As the 9th Circuit panel wrote: "Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place, regardless of whether the right was withdrawn after a week, a year, or a decade. The action of changing something suggests a more deliberate purpose than does the inaction of leaving it as it is ... the relative timing of the ... events is a fact, and we must decide this case on its facts."
I love this because it recognizes something truly beautiful about liberty: It should be easier to expand than contract; it should be simpler to say everyone gets x, rather than denying x to a particular group of people (where x could be the right to marry, an education or tickets to a Broadway show). So it may be possible to drive the wrong way down a one-way street, but it is perilous and disfavored. Put another way, enacting prejudice into law ought to be difficult.
No comments:
Post a Comment