The verdict is in, and for those of us who have watched these cases closely, listened to oral arguments and read briefs, here is the result – the Supreme Court has ruled on two pieces of the same-sex marriage (SSM) legal puzzle. The striking down of the Defense of Marriage Act’s definition section is fairly straightforward, but I’ll write about it in a few days, once the dust settles a bit. But the ruling on California’s Proposition 8 is a real head-scratcher. What, exactly, did the court decide?
Let’s take a look…
The first puzzling aspect is the composition of the majority and minority. The five justices ruling for the majority were Chief Justice Roberts, followed by Scalia, Ginsburg, Breyer, and Kagan. One might think, from the fact that it was a 5-4 decision, that it was decided on narrow idealogical lines, with Republican appointees voting one way and Democratic appointees voting the other. In this case, the 5-4 split was not partisan – something else was at the root of their agreement.
So then, what was actually decided in the case? Was Proposition 8, the ballot initiative changing the California constitution in order to define marriage as between a man and woman, struck down as unconstitutional? Actually, no. Those who fought for SSM did not get what they were, ultimately, desiring – the Supreme Court to rule that all restrictions of marriage to a man and woman are unconstitutional. Instead, the court ruled on a somewhat different issue – whether the petitioners could petition the court at all.
In the United States, in order to bring a case, one must be harmed in such a way that a judicial verdict can remedy the harm. For example, if someone stole from me, I am deprived of property and the judge can remedy the situation by ordering the property be returned and so on. States automatically have an interest in keeping their laws on the books, so if a law may be declared unconstitutional they can argue that it not be struck down. However, the state government of California did not want to defend the SSM ban. The people who did want to defend the ban were unable to show how they were harmed by the ban being lifted, thus they could not appeal the decision. They were, from the standpoint of the high court, only a very interested, very motivated set of bystanders.
Why such a ruling? From what I can tell, it is more about California than it is about the merits of a SSM ban. In California there are two ways to get a law passed. The people’s elected representatives can propose and debate a bill, then vote on it and if it passes, the governor can sign it. However, if the people of the state consider their elected representatives unresponsive to their desires, the people can draft legislation on their own and submit it to a popular vote. If the legislation passes, then it becomes law immediately.
There is much that is attractive about ballot initiatives, especially given the particular weaknesses of a two-party political system, where the circumstances surrounding party affiliation and national politics can deadlock government or in other ways force the government to consistently act contrary to the popular will. Perhaps it would be better to vote in more responsive representatives, but that would disrupt the party system as it is currently practiced in the USA, so instead Californians enjoy ballot initiatives.
Unfortunately, the results are predictable. There is a constant showdown between the people’s direct vote and their legitimately elected representatives. The government is called upon to enforce laws that it actively voted down and/or vetoed. Ballot initiatives are often challenged in court, and receive tepid defense from those tasked with promoting their legitimacy. It is as if the law-making process is designed based on the question – what if the others stubbornly refuse to cooperate?
First, concerned citizens recommend a law. Then the legislature fails to pass it. So the citizens pass it themselves. But other concerned citizens (perhaps the ones that successfully pressured the legislators to prevent the law’s passage) mount a lawsuit to have it struck down. The government, since the law didn’t originate with them, has little interest in defending it, so the law stands little chance in the adversarial system. Well, the California system has thought of that, too. For a law that started as a ballot initiative, the concerned citizens can defend it themselves since they cannot rely on their non-responsive elected officials to do so. The whole system is based on the idea that elected representatives do not, in fact, represent the will of the electorate.
If this situation reminds you of the squabbling of children, you’re not alone. Apparently the federal appeals court allowed the concerned citizens to defend Prop8 after it was struck down by a district court since the state officials declined to appeal the ruling. But the Supreme Court is unwilling to be the arena for Californians to fight each other. Reasonable people ought to assume that every ballot initiative will face a constitutional legal challenge of some sort or another. The elected representatives are constantly bypassed – both in the formulation of the law and in its defense. This leaves the US Supreme Court as the de facto arbiters in, well, just about everything controversial in California. And the justices will not take that job, unless someone can demonstrate that they’ve been personally harmed by the law in question.
And here’s where the ruling becomes interesting for those who are more than mere bystanders in the wrestling match that is California politics. Are ordinary citizens harmed by allowing SSM? Do they suffer the kind of loss that a judicial ruling can set right? I’ve wondered about this myself. I’ve argued elsewhere that the US no longer has a marriage culture, but a divorce culture. That is, we are now used to family court deciding what rights and responsibilities parents have concerning their children and concerning the marital estate. This is no longer considered extraordinary or tragic, but just normal. Children are treated as the property of a state that can decide which caretaker is best suited for the job of raising them. Marriage bonds are considered sacred, but only as long as they last. And society rallies around people who split from their spouses in order to find happiness and self-fulfillment alone or in the arms of another. Would SSM have harmed me or my own marriage? Perhaps only to the degree that it would cement forever the judicial foundation for marriage in place of a sacred/covenantal foundation. But I think that transition has occurred already, some decades ago.
It will take more than a group of concerned citizens to appeal the striking down of Prop8 by the district court. It will take someone who was directly harmed by Prop8 being struck down. I invite your comments as to who might fulfill that role.