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Thursday, September 08, 2005

Legislatures vs. Courts:
More Complicated Than I Said

Yesterday, I criticized California Gov. Schwarzenegger for mumbling about how courts should decide the issue of gay marriage in California. I pointed out that Republicans and some Democrats have criticized liberals/other Dems for relying on courts to achieve their goals. The usual line is that Dems try to get through courts what they can't get from voters. Before I start with my main point, let me point out that Gov. Schwarzenegger is apparently planning to veto the law the legislature passed to allow gay marriage.

That said, I'd forgotten about the 2000 Prop. 22 ballot initiative that passed and adds this text to the California statutes:
308.5. Only marriage between a man and a woman is valid or recognized in California.
It was my mistake to ignore this issue, which was discussed in both the NYT and WaPo articles to which I linked. The consitutionality of this law (relative to the state, not the federal, constitution) is currently being challenged in CA courts; this is the source of the governor's initial "let the courts decide" dodge.

I'm certainly no expert on California law, and there may be something special in CA about laws passed through ballot initiatives. But normally, when a law is passed, it can be overridden with new laws. I'd be very interested to hear from someone who does know about CA law concerning whether ballot initiatives can be superceded by laws passed through the normal (i.e., representative) legislative process. So let's consider two scenarios:
  1. The law passed by the legislature this week would supercede the 2000 initiative. Then I stand by everything I said, unmodified. The initiative doesn't change my view.

  2. This week's law would not supercede the 2000 initiative. In this case things are less cut and dried. In this case I'm less sure of the procedural merits of the legislature's law (though I'm certain of the demerits of not allowing the legislature's laws to superceded initiatives). I would note, though, that the practice of enacting laws of dubious (or downright non-) constitutionality has hardly been avoided in recent years. Consider the so-called partial birth abortion act that Congress passed recently -- despite a 2000 SCOTUS decision that struck down a very similar Nebraska law. Or lots of other restrictions on abortion around the country -- as I understand it, some states have chosen not to enforce laws that would ban abortion so that they'll be on the books the moment the SCOTUS overrules Roe, should that ever happen.
Either way, Schwarzenegger is either craven or a bigot -- or both -- for refusing to stand up to the nutty right on this issue. I'm tired of hearing about all the so-called moderate Republicans -- who regularly jump ship when the going gets tough on issues relating to their supposedly libertarian "principles".

Update: My conservative friend Peter takes me to task in the comments section for the next to last sentence above. He writes:

If option 2 is the case, why is Arnold either a craven or a bigot? Because other legislatures pass laws of dubious constitutionality and the respective executives did not veto the legislation? One could argue that one of the best rationales for the chief executive having the veto power is that he/she is charged with enforcing the law and if he/she believes it is unconstitutional, then he/she should veto it.

Peter has a good point. If case 2 holds (and a CA resident friend emailed to suggests that that is probably the case), then Shwarzenegger need not be craven nor a bigot simply for vetoing the bill. Peter argues later in his comment that all branches of government have a responsibility to ensure constitutionality of statutes enacted and signed into law. I take his point on this issue: I think that the widespread practice of passing and signing unconstitutional laws is a bad one, and I'm glad to hear a Republican suggest that this path is an illegitimate one.

Thus let me say that it would, in fact, be reasonable to veto this law solely on the procedural grounds Peter raises, provided, of course, that Gov. Schwarzenegger would do the same to a law whose policy result he supports when its unconstitutionality is clear. However, I still don't think that settles the issue.

First, the constitutionality of the ballot initiative -- and thus the unconstitutionality of the legislature's act -- has not yet been established. I'm not convinced the governor would be acting in bad faith if he signed the legislative act and explained that in the event that the courts strike down the ballot initiative, it will be important to have an enacted law -- and not just a court's opinion -- to buttress the legality of gay marriage in California. It seems to me that there is a real public interest in the idea that laws have both judicial and legislative support.

Second, let me say that I really do believe that, given his actions, "either way, Schwarzenegger is either craven or a bigot -- or both." Why? Because to my knowledge he has never had the guts to say "I'm for the policy underlying this act, but I feel that it is my obligation to veto the act in light of my strong belief in its unconstitutionality." That would be an act of principle (and one that would likely upset people on both sides of the issue). Refusing to take a stand on the merits of the issue because he is afraid of upsetting the extremist bigots that now anchor the Republican party and intimidate its elected officials is, in fact, craven. And if the governor is one of those who agrees with the radicals, then he is a bigot. It's really that simple in my view.

None of which is to deny the procedural point that Peter makes, of which he has convinced me.

2 Comments:

Anonymous bu$h ate my baby said...

You lost me at the end there. If option 2 is the case, why is Arnold either a craven or a bigot? Because other legislatures pass laws of dubious constitutionality and the respective executives did not veto the legislation? One could argue that one of the best rationales for the chief executive having the veto power is that he/she is charged with enforcing the law and if he/she believes it is unconstitutional, then he/she should veto it.

And to anticipate a possible rejoinder, no, the courts are not solely responsible for determining the constitutionality of a law. At least when considering the federal government, it is often said that each branch has a duty to ensure that laws are constitutional. Other branches shouldn't abdicate that responsibility simply because other branches also have that responsibility. On this point, again when considering the fed government, keep in mind that the Supreme Court's role in this process is defined through case law, most notably Marbury v. Madison -- which established the principle of “judicial review”(that the Supreme Court has the power to declare acts of Congress unconstitutional) -- not in the Constitution. I mention this not because Marbury v. Madison is in any way wrong (it's not), but that it is viewed that the different branches each have some responsibility to ensure the constitutionality of laws. This is a widely-accepted view in the federal context, so not unreasonable to assume that the same principles should apply in the state context.

9/09/2005 11:38 AM  
Anonymous bu$h ate my baby said...

I'm honored by the update.

9/13/2005 3:38 PM  

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