Gay marriage supporters are celebrating their two big wins Wednesday, after the Supreme Court (in effect) overturned California and Federal laws restricting same-sex marriage.
In the California case, Chief Justice John Roberts again used a clever legal twist to get the result he wanted in the narrowest possible way. The first and most famous example was declaring the Obamacare individual mandate a tax (even though the legislative history emphasized it wasn’t a tax, and supporters had not defended it as a tax).
On Monday, a 7-1 majority limited the ability of universities to use race in affirmative action — not by banning (as some wanted) but by imposing new tests that will have to be interpreted by the courts. The decision left analysts puzzling over what it means, but universities expecting a series of expensive lawsuits challenging their policies until the Supreme Court gives clearer guidance many years from now.
Then in the California Proposition 8 case, a 5-4 majority in effect upheld gay marriage by denying the Prop 8 supporters a right to defend their proposition after the (pro-gay marriage) governor and attorney general declined to do so. In dissent, California-born (Stanford graduate) Anthony Kennedy attacked the decision as gutting the initiative process, installed by California progressives in the early 20th century. As Kennedy wrote:
The Court’s opinion disrespects and disparages both the political process in California and the well-stated opinion of the California Supreme Court in this case. … The California Supreme Court, not this Court, expresses concern for vigorous representation; the California Supreme Court, not this Court, recognizes the necessity to avoid conflicts of interest; the California Supreme Court, not this Court, comprehends the real interest at stake in this litigation and identifies the most proper party to defend that interest.Conservatives (who wanted Prop 8 upheld) such as WSJ columnist John Fund were predictably upset by the Roberts approach. But then so was Kevin Drum, a blogger who covers “civil liberties, gay rights” for the left-wing magazine Mother Jones. After quoting Kennedy’s dissent that “gets at the core problem here,” he wrote:
In the end, what the Court fails to grasp or accept is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century.
In California and the 26 other States that permit initiatives and popular referendums, the people have exercised their own inherent sovereign right to govern themselves. The Court today frustrates that choice by nullifying [for lack of standing] a State Supreme Court decision holding that state law authorizes an enacted initiative’s proponents to defend the law if and when the State’s usual legal advocates decline to do so.
In California, it's routine for the people to pass initiatives that neither the governor nor the legislature supports. In fact, that was the whole point of the initiative process when it was created. In cases like these, of course the governor and legislature are going to decline to defend the law in court. With today's decision, the Supreme Court is basically gutting the people's right to pass initiatives that elected officials don't like and then to defend them all the way to the highest court in the land.As Kennedy, Fund and Drum correctly note, the decision has reduced the accountability of politicians, weakening (if not undoing) the ability of voters in 26 states to practice direct democracy.
To me, this has neither the flavor of justice nor of democratic governance, regardless of whether I like the outcome.
In all three cases, it appears the Roberts Court (or at least the chief justice) has moved the US legal system away from a key principle articulated by John Adams, one of the revolutionary founders, our first vice president and the principle author of the 1780 Massachusetts Constitution. In 1774 Adams wrote that a key principle of the English legal system was “a government of laws, and not of men.” Using technicalities means that courts, not voters or legislators, will be deciding what is allowed and not allowed in our republic.