The Policy on “Policy” — Gay Marriage And Sotomayor

Six People Who Do Not Make Policy

Before explaining why the Supreme Court Of California is ending the policy of gay marriages, Chief Justice George succinctly explains in a one-hundred and thirty-six page 6-1 majority opinion why the court is not making policy:

In addressing the issues now presented in the third chapter of this narrative, it is important at the outset to emphasize a number of significant points. First … our task in the present proceeding is not to determine whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution. Regardless of our views as individuals on this question of policy, we recognize as judges and as a court our responsibility to confine our consideration to a determination of the constitutional validity and legal effect of the measure in question. It bears emphasis in this regard that our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values.

The conclusion Chief Justice George reaches, of course, clearly is not policy:

In summary, we conclude that Proposition 8 constitutes a permissible constitutional amendment (rather than an impermissible constitutional revision), does not violate the separation of powers doctrine, and is not invalid under the “inalienable rights” theory proffered by the Attorney General. We further conclude that Proposition 8 does not apply retroactively and therefore that the marriages of same-sex couples performed prior to the effective date of Proposition 8 remain valid.

Aha!  Because Proposition 8 is merely an “amendment” and not a “revision” to the state constitution, gays can’t have their gay-ass weddings anymore.  Not only that but, because this was a just a metaphorical typo fixed in California’s constitution vis-a-vis an amendment, it’s not policy.  Simply, it is an application of precedent and law.

Further, retroactive application of Proposition 8 is policy — not law.  The sanctity of the court’s ruling allowing gay marriage for a period of time is not policy and is law.  To be clear, forcing state agencies to uphold prior marriage certificates is not policy.  That would be law.  Look it up.

Are you confused?  You ought not be.  Proposition 8 was an amendment rather than a revision of California state constitution.  Amending the constitution in California is far different than the rigors of of amending the real, I mean, United States Constitution.  Think back to civics in seventh grade.   Wait a second, why don’t I just allow The Chief Judge educate you on California law:

The federal Constitution provides that an amendment to that Constitution may be proposed either by two-thirds of both houses of Congress or by a convention called on the application of two-thirds of the state legislatures, and requires, in either instance, that any proposed amendment be ratified by the legislatures of (or by conventions held in) three-fourths of the states. (U.S. Const., art. V.) In contrast, the California Constitution provides that an amendment to that Constitution may be proposed either by two-thirds of the membership of each house of the Legislature (Cal. Const., art. XVIII, § 1) or by an initiative petition signed by voters numbering at least 8 percent of the total votes cast for all candidates for Governor in the last gubernatorial election (Cal. Const., art. II, § 8, subd. (b); id., art. XVIII, § 3), and further specifies that, once an amendment is proposed by either means, the amendment becomes part of the state Constitution if it is approved by a simple majority of the voters who cast votes on the measure at a statewide election.

There are literally over 500 amendments to the California constitution.  The U.S. Constitution has a lean, mean, 27 amendments.  Now, a revision is hard-nosed substantive change in the constitution under California law, while an amendment is a far more dainty change.  Regardless, what you need to take away from this is that dainty changes to California’s asphyxiated document do not protect dainty individuals.  Also, said dainty changes to the law are interpretations of the law.  Such interpretations of the court have no policy implications whatsoever.  That’s the law.

Those decisions explain that in resolving the amendment/revision question, a court carefully must assess (1) the meaning and scope of the constitutional change at issue, and (2) the effect — both quantitative and qualitative — that the constitutional change will have on the basic governmental plan or framework embodied in the preexisting provisions of the California Constitution.

It’s a good thing no one listens to the policies of our lone dissenter, Justice Moreno:

The rule the majority crafts today not only allows same-sex couples to be stripped of the right to marry that this court recognized in the Marriage Cases, it places at risk the state constitutional rights of all disfavored minorities. It weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority. I therefore dissent. …

The equal protection clause is therefore, by its nature, inherently countermajoritarian. As a logical matter, it cannot depend on the will of the majority for its enforcement, for it is the will of the majority against which the equal protection clause is designed to protect. Rather, the enforcement of the equal protection clause is especially dependent on “the power of the courts to test legislative and executive acts by the light of constitutional mandate and in particular to preserve constitutional rights, whether of individual or minority, from obliteration by the majority.”  …

The majority upholds Proposition 8 by reasoning that it does not “fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated” in the Marriage Cases, because it merely “carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term ‘marriage’ for the union of opposite-sex couples . . . .”  The majority protests that it does not mean to “diminish or minimize the significance that the official designation of ‘marriage’ holds” but that is exactly the effect of its decision. …

Screw that countermajoritarianism and equal protection clause speak!  That’s policy.  Not law.

Clearly, when one says it’s not policy, it’s not policy.

*So, if you’re wondering what the pretzelesque logic above is, so am I — to an extent.  The Supreme Court of California goes out of its way to emphasize it is not in the business of making policy — yet, that’s exactly what it does.  The high court of California makes policy in two ways: they validate previous gay marriages and preclude future ones.  They mask everything to cater to the will of the majority.  The Equal Protection Clause is designed to protect against the tyranny of the majority and safeguard the rights of the few.

Furthermore, I hoped you had a hard time working through the “logic.”  That was my intent.   Even lawyers have hard times making sense of 136 page opinions where semantics gymnastics are being utilized worse than a steroid-pumped Chinese women’s Olympic squad.

The real issue is hit home by the dissent (sort of).  The crux of the debate here is not whether there is an amendment or a revision — it’s whether gays have the right to be married.  Now, I could criticize the dissent in that it also goes down this definitional diatribe to argue Proposition 8 is a revision violating equal protection rights and prior decisions, but, that’s too picky and nuanced.  This decision is wrong not because of a definition.  Proposition 8 is wrong because it’s wrong.  It violates equal protection and substantive due process rights to liberty. The dissent does a good job driving at this by and large.

The discussion on what is “policy” versus “law” is simply a red-herring used by the majority.  Court decisions have policy impacts all the time and to ignore that is intellectually dishonest.  As examples of policy, look at the linchpin of American jurisprudence — judicial review.  The concept of judicial review was famously articulated in Marbury v. Madison. Other easy examples of “policy” in The Supreme Court are found in Miranda, Roe, Brown v. Board, Casey, Lawrence v. Texas, Connecticut v. Griswold, and Wong-Sun. I could rattle off hundreds of cases.

Normally, I don’t explain attempts at satire, but, I wanted the reader to feel the pain a lawyer has to go through to understand ridiculous decisions such as this one.  I also want the reader to learn policy and law often commingle and rightfully coexist.  I harp on “policy” ad-nauseum because you’ll be hearing that word an awful lot as Sotomayor goes through the confirmation process in the Senate.

The real issue here is the court uses the baloney excuse of shying away from policy in order to tweak the opinion in a veiled effort to fit definitions under the guise of following the law.  They are ducking the issue.   Definitions of words here are meaningless when compared to the real deal — equal protection under the law.  If abrogating rights to a suspect class is not a substantive and meaningful change in the law, what is?

One last thing:  None of this matters.  It’s all about the eventual removal to Federal court and what Associate Justice Kennedy says in a year or two.

Tags: Gay Marriage, Policy, Propostiion 8, Sotomayor, Supreme Court of California