Tuesday, March 26, 2013

Legislative authority and same-sex marriage

Today, the Supreme Court heard oral arguments for Hollingsworth v. Perry, the case about California's Proposition 8 passed in 2008. That measure added the following clause to the California State Constitution:
 SEC. 7.5. Only marriage between a man and a woman is valid or recognized in California.
Previously, I briefly detailed the legal history of Prop 8 since its passage:
In 2008, Proposition 8 was passed by California voters, 52% to 48%, not an overwhelmingly majority but an obviously clear majority. It was immediately challenged in State court and ruled as valid by the California State Supreme Court. It was then challenged in federal court. There, a judge in the U.S. District Court for the Northern District of California--located in San Francisco--ruled that Proposition 8 was unconstitutional, that it violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

The State of California appealed, but the Ninth Circuit upheld the District Court's ruling. However, it did not do in quite the same way as the District Court. The ruling by the judge in the latter held that same-sex marriage was a right to be recognized. In contrast, the decision by the Ninth Circuit was based on Proposition 8 taking away a right that had already been granted.
Now that oral arguments are concluded, commentators are busy laying out the potential responses by the Court. As usual, SCOTUSblog is the place to go. In this article, Lyle Denniston very correctly--in my opinion--lays out four possibilities for the Court, which he terms the "nationwide solution," the "eight-state solution," the "California only solution," and the "jurisdictional solution."

Opponents of same-sex marriage are necessarily banking on the first, the "nationwide solution," but in terms of the Court simply declaring that States have the authority to define what marriage is, i.e. a union of one man and one woman. But I think such a decision is a pipe-dream for this specific case (there is still another, bigger case pending on the DOMA). The oral arguments suggested that few Justices--if any--would rule this way (Alito and Scalia being the only real possibilities, in my opinion).

No, I think it nearly a given that Proposition Eight will not survive. The least invasive choice in that regard would be the "jurisdicational solution," wherein the Court would simply refuse to rule on the case--leaving the Ninth's ruling in place--by finding that the plaintiffs lacked standing to bring suit. But the question is, is this truly the right choice? Is there a right choice available, at all, with respect to first principles and the Constitution, proper.

I believe there is. And to understand what the correct decision is, we need to remember the nature of legislative power or authority--the means through which valid laws are made--as enshrined in the Constitution.

The most basic statement of such authority can be found in the writings of John Locke, from his Two Treatises of Government. From Chapter XI, Section 134:
The great end of men's entering into society, being the enjoyment of their properties in peace and safety, and the great instrument and means of that being the laws established in that society; the first and fundamental positive law of all commonwealths is the establishing of the legislative power; as the first and fundamental natural law, which is to govern even the legislative itself, is the preservation of the society, and (as far as will consist with the public good) of every person in it. This legislative is not only the supreme power of the common-wealth, but sacred and unalterable in the hands where the community have once placed it; nor can any edict of any body else, in what form soever conceived, or by what power soever backed, have the force and obligation of a law, which has not its sanction from that legislative which the public has chosen and appointed: for without this the law could not have that, which is absolutely necessary to its being a law, the consent of the society, over whom no body can have a power to make laws, but by their own consent, and by authority received from them; and therefore all the obedience, which by the most solemn ties any one can be obliged to pay, ultimately terminates in this supreme power, and is directed by those laws which it enacts: nor can any oaths to any foreign power whatsoever, or any domestic subordinate power, discharge any member of the society from his obedience to the legislative, acting pursuant to their trust; nor oblige him to any obedience contrary to the laws so enacted, or farther than they do allow; it being ridiculous to imagine one can be tied ultimately to obey any power in the society, which is not the supreme.
It is--consistent with Hobbes--a part of the fundamental purpose of the social contract to establish a legislative authority, above all else, a means of enacting laws for the purposes of men (and women) to have "the enjoyment of their properties in peace and safety." Necessarily, laws are established to secure these things, to secure the blessings of liberty (sound familiar?), not to subtract from the same.

Locke is even clearer in this regard in Chapter IV, Sections 22 (my boldface):
The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of nature for his rule. The liberty of man, in society, is to be under no other legislative power, but that established, by consent, in the commonwealth; nor under the dominion of any will, or restraint of any law, but what that legislative shall enact, according to the trust put in it. Freedom then is not what Sir Robert Filmer tells us, Observations, A. 55. a liberty for every one to do what he lists, to live as he pleases, and not to be tied by any laws: but freedom of men under government is, to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it; a liberty to follow my own will in all things, where the rule prescribes not; and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man: as freedom of nature is, to be under no other restraint but the law of nature.
Note what Locke is doing here. He is taking the Hobbesian State of Nature--wherein everyman is free to do whatever he pleases--and turning it into a State of Civil Society: man is free to do as he pleases, only insofar as his actions do not conflict with the properly made laws of that society, laws which must proceed from the fundamental basis of securing property, peace, and safety.

And in this regard--returning to Chapter XIV, Section 138--Locke says (my boldface):
Thirdly, The supreme power cannot take from any man any part of his property without his own consent: for the preservation of property being the end of government, and that for which men enter into society, it necessarily supposes and requires, that the people should have property, without which they must be supposed to lose that, by entering into society, which was the end for which they entered into it; too gross an absurdity for any man to own. Men therefore in society having property, they have such a right to the goods, which by the law of the community are their's, that no body hath a right to take their substance or any part of it from them, without their own consent: without this they have no property at all; for I have truly no property in that, which another can by right take from me, when he pleases, against my consent. Hence it is a mistake to think, that the supreme or legislative power of any commonwealth, can do what it will, and dispose of the estates of the subject arbitrarily, or take any part of them at pleasure.
Locke is overly concerned with property, it is true, with the protection of the same from arbitrary government confiscation. And this concern permeates the Constitution, proper, insofar as the State is consistently limited from such actions at every turn. But with property also comes life and liberty; these three core issues are what moved the framers, particularly men like Madison. The "necessary and proper" clause specifies laws as being those needed to carry out the specified powers alone, nothing more. And particular kinds of laws--Bills of Attainder and ex post facto Laws--are expressly forbidden.

While it is true that powers not reserved for the Federal Government are the province of the States, such powers were not intended to trump the essential ideology of the Constitution, an idea that informs the Ninth and Tenth Amendments and is more properly codified in the Fourteenth.

With all of this in mind, consider now Justice Samuel Chase's words from Calder v. Bull, most recently partially cited by Justice Sandra Day O'Connor in Kelo v. New London (my boldface):
An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power, on which it is founded. A few instances will suffice to explain what I mean. A law that punished a citizen for an innocent action, or, in other words, for an act, which when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a Judge in his own cause; or a law that takes property from A. and gives it to B. It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it. The genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them. The Legislature may enjoin, permit, forbid, and punish; they may declare new crimes; and establish rules of conduct for all its citizens in future cases; they may command what is right, and prohibit what is wrong; but they cannot change innocence into guilt; or punish innocence as a crime; or violate the right of an antecedent lawful private contract; or the right of private property. To maintain that our Federal, or State, Legislature possesses such powers, if they had not been expressly restrained, would, in my opinion, be a political heresy, altogether inadmissible in our free republican governments.
To the best of my knowledge, no one has ever suggested Chase has the wrong of it here; no ruling by any Court has ever taken issue with these fundamental assumptions about the nature and limits of legislative power (though Courts have ignored these words, as was the case in Kelo). And with respect to legislative authority, it is itself not subject to artificial and arbitrary encroachments by the citizenry, proper. To put it another way, the citizenry does not possess the power to act contrary to first principles, either. For if it did, such power would--in keeping with social contract theory--exist in legislative bodies, as well.

And note how Chase's words echo Locke's with regard to property. Chase expands the limitations--necessarily--to include ex post facto laws and private contracts. In the case of California's Proposition 8, both are violated: the proposition makes what was a legal action--same-sex marriage--into an illegal one while simultaneously invalidating a lawful private contract.

Thus, there is very much a proper ruling here: it is as the Ninth Circuit ruled, the "California only solution":
This would mean that the Golden State alone would be affected, with a finding that it could not take away same-sex marriage after once having allowed it, as it did before Proposition 8.
Because what no one in favor of Proposition 8 has successfully established is any kind of actionable harm from the existence of same-sex marriages prior to the passage of the proposition. In contrast, there is actionable harm to specific persons from its passage: previously valid private contracts are being invalidated for no valid reason--with respect to legislative authority--in direct opposition to the fundamental purpose of the Constitution.

Cheers, all.

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