Legal Commentary

Back at the end of my June blogging stint I suggested, based on a conversation I had with a figure in the No-on-Proposition 8 forces,  that the forces pushing Prop. 8 (the anti-same-sex marriage rights initiative) might focus more on process arguments (i.e., the judicial-hijacking-of-the-people's-will) than on the substantive merits of the issue.  It hasn't turned out that way, at least based on what I've heard and seen (here is an exception, though given the length of the ad I suspect it's not been widely televised).  There has been some judge-bashing (like in this TV ad, which has gotten a fair amount of airtime, and this op-ed) but even these statements just start with the judicial angle and then move on to the substantive claims against according marriage rights to same-sex couples. 

In retrospect this shouldn't have been too surprising: an issue that elicits this kind of gut reaction (both pro and con) is probably not susceptible to process arguments, even the one that probably gets the most traction -- that "activist" judges are thwarting the people's will.

Still, stitching together (and extrapolating from) strands of the pro-Prop. 8 arguments I've heard reveals the outline of a process argument.  It starts with the statement that Prop. 8 will not take away any material benefits same-sex couples currently enjoy.  It then attempts to refute the argument that Prop. 8 takes away rights by arguing that the right never existed, but was instead invented by the state supreme court majority.  Thus, Californians should not feel guilted by the don't eliminate rights argument, which essentially holds Californians hostage to whatever rights a bare majority of the state supreme court may dream up.  The argument concludes by calling for Californians to discipline the courts by reimposing, now as a matter of state constitutional law, the one-man-one-woman definition of marriage that the people enacted as a statute (Proposition 22) in 2000.

Of course this process argument has been nowhere near front and center of the pro-Prop. 8 argument, which has instead focused on the "protecting children" and religious freedom angles.  And substance is where the argument ought to be, anyway.  Ironically enough, the sequence of events in which the court's decision generated the initiative means that the people are in fact getting the final say on what the state constitution means.  That's not to say the process is perfect: amending a constitution ought to take more than one vote of a simple majority.  Nor is it to say that this kind of issue ought, in some deeper way, to be put up for a vote.  But, for better or worse, the sequence of events in California has cleared away the process arguments and squarely presented the substance of the same-sex marriage rights issue.