Same-sex marriage: Jerry Brown’s interpretation
December 22nd, 2008Does the California Constitution permit voters to overturn same-sex marriage? Jerry Brown’s interpretation move
California Attorney General Jerry Brown has made a good move in the legal interpretation game over same-sex marriage. In May of 2008, the state Supreme Court held 4-3 that a statute refusing to recognize the marriages was an unconstitutional violation of fundamental rights. In November, 52% of the voters adopted Initiative Proposition 8, overturning the court’s decision by amending the state constitution. All sides are back in court to litigate the validity of Proposition 8.
The realistic, pragmatic analysis of the litigation would simply ask whether a majority of the justices still believe today what they believed months ago, that recognizing same-sex marriages is a good idea, and why. Let’s be honest: It’s really up to the personal, philosophical and political values of those 4 justices.
But the legal interpretation game requires a Kabuki drama (or is it Gilbert & Sullivan?) instead. So we get legal briefs about text and history and doctrine and precedent that “require” the court to go this way or that. Here is where Jerry Brown makes his good move in a brief.
To be sure, the Attorney General dutifully puts on the Kabuki mask and talks text, history, doctrine and precedent. But he sheds a good deal of the costume by putting at the heart of the matter a question of philosophy, not philosophy of sexual preference, but philosophy of government. The question is whether a majority of voters may remove fundamental and inalienable rights from others. John Locke in the 17th century said no, Thomas Jefferson agreed with Locke in the 18th, and the drafters of the California constitution agreed with Jefferson in the 19th. It has always seemed to me a sound and important philosophy of government. Few liberals or conservatives disagree with it. The answer to it affects more than gay rights.
Do at least 4 justices of the California Supreme Court agree with it? Brown has shown them the way to put themselves on record defending this transcendent philosophy of government. It should be easy for them. And a court opinion dealing straightforwardly with that philosophy of government would be healthier for the commonweal than an opinion parsing precedents. Of course, the Legal Realism analysis must include the fact that Brown is planning to run for Governor in 2010, as is the gay-supported mayor of San Francisco, and the fact that Proposition 8 supporters threaten a recall of justices who fail to uphold it. But Brown has established the high-ground by stating the philosophical issue at stake, and that ground could serve both him and the justices well in any political battles ahead.
I see from the Los Angeles Times that my old friend Gerald Uelmen at Santa Clara University Law School was surprised by Brown’s move. It “turns constitutional law on its head,” Gerry said, adding that he was unaware of any case law that supported Brown’s theory. This reminded me that years ago Gerry once complained to me that a court had disregarded the plain text of a statute and wanted to know if I had every heard of such a thing. Only in all those thousands of cases since time immemorial when courts had followed “purpose,” “nature,” or something other than mere “text,” I answered. That was before I had reduced all the moves to a one-page diagram on page 82 of my 2008 book, The Interpretation Game: How Judges and Lawyers Make the Law. Brown dressed up his move to philosophy by calling it a move to “purpose” and “nature,” and threw in a lot of case precedents to boot. Gerry ought to applaud it. I know for a fact he’s a big fan of Gilbert & Sullivan.