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On Proposition 8, the Constitution and American values

The decision of a United States federal appeals court earlier this month that Proposition 8 violated the U.S. Constitution was, predictably, both celebrated and criticised.  At the same time, it was a perfect example of how the country’s constitutional model inhibits genuine debate.

The decision upheld the district court ruling of August 2010 overturning California’s Proposition 8.  Passed by voters in November 2008, that initiative amended the state’s constitution to restrict marriage to opposite-sex couples.  Proposition 8 overturned the state’s supreme court’s May 2008 ruling in In re Marriage Cases, which in turn found inconsistent with the state constitution Proposition 22, which had amended the state’s statutes similarly in 2000.

Sound complicated?  The American and Californian constitutions are designed to protect rights seen as fundamental.  In practice, the question of whether those rights are violated lies with judges in a journey through the appellate courts.  These judges, for good reason, are neither elected nor subject to the accountability that governs other public officials.  In effect, a handful of relatively aged people of a single profession often have the final calls over what citizens can and can’t do.

Not so obvious
These calls are hardly clear-cut.  In re Marriage Cases was a 4–3 split decision.  Perry v. Brown, the case which overturned Proposition 8, was split 2–1.  Indeed, many commentators believe the battle on gay marriage in California will go to the federal supreme court, with a likely 5–4 split, Justice Anthony Kennedy having the deciding vote and the others splitting on ideological lines.  Some note that the decision appears to have been written to resonate with Justice Kennedy.  Others note the decision was crafted to avoid broader constitutional questions altogether and limit the effect to California, perhaps to minimise the risk and consequence of overturn.

It’s hard, then, to see the judgements as resounding affirmations of universal rights.  Landmark decisions tend to split appellate courts: Roe v. Wade, which legalised first-trimester abortion, was 6–3; Lawrence v. Texas, which struck down sodomy laws, was also 6–3; Dred Scott v. Sandford, which in 1857 held that blacks could never be U.S. citizens, was 7–2; Adarand Constructors v. Peña, which made racial classifications subject to “strict scrutiny”, was 5–4.  Even learned judges, who we trust more than the collective citizenship, cannot agree.

A poorer dialogue
But it is not courts’ taking these matters completely beyond voters’ hands that is the scariest part of the political system.  Political debate in America is not about what is right or wrong, or good or bad, but what is American, un-American, constitutional or unconstitutional.  Consider these statements, relating to Perry v. Brown, emphasis added:

Today’s powerful court ruling striking down the infamous Prop 8 affirms basic American values
Evan Wolfson, founder and president of Freedom to Marry (ref: The Guardian)

It is about us.  It is about every one of us… Today we are more American because of this decision.
Ted Olson, lawyer against Proposition 8 (ref: The Guardian)

The panel’s ruling mischaracterized the purpose of marriage [and] failed to faithfully and fairly interpret the Constitution
Brian Raum, senior counsel for the Alliance Defense Fund (ref: Christian Post)

That prospect [of its going to the Supreme Court] underscores the vital importance of this election and the movement to preserve our values.
Mitt Romney, Republican presidential candidate (ref: LA Times)

Should the Supreme Court fail to heed the disastrous lessons if its own history… it will bear the burden of igniting a constitutional crisis of the first order.
Newt Gingrich, Republican presidential candidate (ref: LA Times)

Some people admire the way Americans stand by their constitution.  I would much rather the debate be about the effects of and principles behind a policy, than whether it is consistent with a document written more than two hundred years ago.  The case for gay marriage is premised on the idea, among others, that the state should afford all genuine loving couples the same legal recognition.  The case against relies on the notion, among others, that marriage loses some meaning when it is open to couples who can’t naturally found a family.  What about either case would make Americans “more American”?

A dialogue in which people constrain themselves to an immutable supreme document will always be more limited than one in which we are free to examine what is better or worse for any legitimate reason.  Codified fundamental rights may look nice but they, too, are arguable in application.  It is an unfortunate feature of America’s political system that those rights, as decided by unelected judges, are the be-all and end-all of everything.


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