by Don Sherfick
By now we’re well aware of the news from Florida, Arizona, and California that though the popular initiative process, state constitutional amendments denying equality to same-sex couples. The disappointments are keen, especially in California where the marital status of some 18,000 gay and lesbian couple has suddenly been thrust into legal limbo. Unfortunately, post-mortems as to why the efforts of the many who fought the discriminatory measure in California have included some finger-pointing that distracts from more important discussions over where pro-equality forces go from here.
There are some stories that religious forces have been emboldened by the success of these amendments. Hoosiers may naturally speculate as to what impact, the news from these three states will have next January when the Indiana General Assembly reconvenes. It seems likely that those who sponsored an ultimately defeated "Indiana Marriage Protection Amendment" (SJR7) will point to California, where after Proposition 8 narrowly passed, some plaintiffs have gone to the California Supreme Court in an attempt to invalidate the measure. Amendment proponents here will no doubt point to this as another example of trying to use "unelected activist judges" to thwart the popular will and predict it could happen here. That’s nonsense, and here’s why:
First, a little recap of the California situation: Last summer, the California Supreme Court held that the equal protection clause of California’s Constitution required that same sex couples could not be treated differently that opposite sex couples. It went on to say that California’s marriage statutes, and not simply its civil union laws, had to be fully applicable to them. Opponents of marriage equality denounced this decision as being the anti-democratic work of "unelected activist judges". We've heard antigay forces in Indiana use this same label, and say that without an amendment the same thing could happen here. But because the words and legal precedents concerning Indiana's Bill of Rights are so different from the California scene, no serious legal scholar believes there is any chance of a similar judicial result in the Hoosier state.
Now anti-equality forces are claiming something more: that plaintiffs in California want to force their will even after California voters have amended their Constitution, and intend to use “unelected activist judges” to accomplish it. They are implying that the court considers itself even above the California constitution to enforce its own decisions.
But that is NOT what has happened in California. Nor does it remotely resemble anything dealing with the Indiana amendment process. California’s constitution uses two terms in describing the change process, “amendment”, and “revision”. Voters can “amend” their constitution by simply getting enough signatures to put something on the ballot, and then getting a majority of the votes cast. On the other hand, the California's constitution says that a “revision” requires something more: either (1) a constitutional convention or (2) for the legislature to first proposing it by a 2/3 vote, and then for California voters to ratify it. Prior decisions in California have defined the difference between "amendment" and "revision". In a nutshell, courts there have said that a “revision” is something much more fundamental, like a measure altering the effect of California's Equal Protection Clause. Those opposing Proposition 8 argue that because it affects fundamental rights, it could not have been passed simply by a majority of voters. They say that it must go through the more involved "revision" process.
The California Supreme Court isn’t doing anything beyond what it is supposed to do: interpret language in its constitution. It would be the same as if someone were to claim that a measure needed only 40% the popular vote instead of a majority. There are arguments against this "amendment" versus "revision" approach, but they can hardly be said to make the justices "activist" simply for deciding this procedural issue one way or another. That’s their job.
Now compare this to Indiana. Our own state Constitution lists only one process for change. A measure must be passed in the same form by two successively elected sessions of the Indiana General Assembly, and then ratified by the voters. Unlike in California, only the term “amendment” is used, with only one listed procedure. (Although it isn’t listed, most scholars think the Indiana Constitution could also be amended by constitutional convention, but that’s not relevant to this discussion.) So there is simply no way a circumstance like that now going on in California could happen here should an amendment ultimately pass at some future time.
Hoosiers may, like others in California and nationally, may debate the strategic wisdom of the current challenge to Proposition 8 under California precedent. Some feel that rather than litigate, California and the nation ought to first see the aftermath of some 18,000 couples having their marriages either invalidated or at least in legal limbo for a while. Then they favor seeking another initiative in which the many misrepresentations made by supporters of Proposition 8 in California are overcome. Not all members of our community, like any community or political party or campaign, see eye to eye on methods and means.
But what is happening now in California has nothing at all to do with "unelected activist judges" and everything to do with what any serious student of constitutional law knows well: the proper functioning of a state court interpreting its own constitution in accordance with its own precedents. Nothing more. If somehow Indiana forces tried to get a measure to the ballot after only one, but not the required two, General Assembly sessions, our courts would be properly doing the same thing if they held that attempt unconstitutional.
Anti-equality forces relish using emotionally laden slogans like “unelected activist judges” and “thwarting the popular will” to try and mask and distort proper constitutional processes and distinctions. It may take a little more time, but our being armed with the truth about these things better helps keep their efforts from succeeding.
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