Dialogue On Judicial Imodesty

A few days ago, I wrote in summary of a discussion I had with a friend, who is also a lawyer, concerning Proposition 8. We’ve exchanged a few more thoughts since then. I’ve written extensively about Proposition 8 and same-sex marriage, and my thought is that dissenting views are worthy of hearing, and so having obtained his permission to reproduce his remarks, I set forth our dialogue on the issue here.

This is a very long post so I’ve taken the liberty of editing out material not pertinent to the discussion. I’m cautious about removing too much because there is value in the depth of the exchange as well as the arguments. So I’ve tried to do only minimal editing. While some may find this esoteric or simply too long to read, I know there are some Readers who come here for exactly this sort of thing, and I think they’ll dig it.

So without further ado, here are my friend’s opening remarks:

Dear TL,

It is assumed by many that because I am a conservative, I oppose gay marriage. Actually, I have been in favor of gay marriage since long before it became a subject of serious discussion. I opposed the original Prop. 22 (I think that was the number) that banned gay marriage in California. I publicly and angrily broke with a [local political] candidate … because he decided to appeal to the worst instincts in people by coming out (if you’ll pardon the expression) in favor of that proposition in an effort to get the hard right, know nothing vote….

It has always been my belief that commitment is a good thing and that anything we do to promote it is as well. The fact that two guys name Fred want to get married does not diminish, in any way, my own marriage. In fact, I think I could make a case for the idea that it strengthens it in some small way. It has no effect, one way or the other, on my commitment to my wife or hers to me, but the fact that other Americans believe it is an institution that should be promoted and honored confirms that it is an important social value. The more unanimity we have in common values, the stronger those values are. …

I wish the “courageous” Democrats in the legislature would pass a law making gay marriage a reality. After all, they have been in control of the legislature and (largely) the executive branch for the last 50 years. That should be time enough for them to have acted. But they haven’t.

At the risk of sounding like some of those “some of my best friends are black” people so excoriated in the popular culture, I should point out that I do not have a large circle of friends and among [them], the only ones I have had stay at our house is a gay couple who truly are among my closest friends. In fact, one of them is certainly a man I would say is if not my closest friend, among the three men closest to me. …

In short, I not only do not hate homosexuals, I disdain prejudice against them; fight it when I can and make no distinction between them and straight people. Frankly, I know nothing about your sexuality and really do not care about it. (In fact, would rather NOT know about it. Gentlemen do not discuss such things and, above all, I am a gentleman.) It is not a subject about which I give a second thought. That is my predisposition with respect to all people. Sexuality is a private matter even among friends. And, I repeat, I am in favor of gay marriage because I think it is fair and it is right. No individual should be discriminated against by reason of his sexual orientation and since, at root, conservatism is about individual freedom, no one should be subject to disparate treatment.

But I am going to vote in favor of Prop 8.

Why, in light of what I have just said, would I do that? Because at some point the Supreme Court of this state has to be told in no uncertain terms that it cannot go arrogantly about making it up based on how they happen to “feel” at the moment. They must be told there are rules of interpretation (and, perhaps, they should buy and read Scalia’s treatise on the subject) and there are things that are permissible and things that are not. Among the things that are not are that (1) they are not a law unto themselves; and (2) they are not lawmakers, they are law interpreters.

You know I am proud that I am a lawyer and I love what I do. I celebrate the fact that we are in one of the most civilized and civilizing of professions. We, more than most people, really make a difference in people’s lives. But I loath the arrogance that goes with that not only in our profession but, most obviously, in the judiciary. What we do is a gift to us and an honor bestowed upon us. But it does not make us better than our fellow citizens and it does not give us the right to decide what is best for them.

It is not the Court’s role to make it up as they go along. It is their role to look at the text of the Constitution and read it in light of its original meaning. It is not their place to decide that those who wrote it were wrong. That is up to the people in the amendment process. If this proposition loses, the Court will assume its own wisdom and continue on its un-constitutional path. If it wins, it will properly see itself as having been rebuked and overruled by the people even as I believe they will continue to think they know better than the people they are bound to serve.

I may be able to be convinced to change my mind in the week remaining before the election, and I will tell you that it breaks my heart to be in the position of voting for something I hate and with which I violently disagree just to make a point to a misguided judiciary. But I did not put myself in this position. The Court, in its arrogance and incompetence did. It has precipitated a situation it need not have. Had it upheld the constitutionality of the earlier proposition that I opposed and voted against, it would have been left to the legislature to do the right thing. Now we are in a no win situation. We either let the Court get away with it, or we enshrine what you rightly described as discrimination into our Constitution.

My position is that it can be repealed, but judicial arrogance is a thing forever if it is not slapped down occasionally by the people. The Court did behave itself a bit after three of its members were defeated in an election. Perhaps the passing of Prop 8 will have the same effect.

In any event, I would welcome your thoughts.

Here is my initial response:

Dear Friend,

[Y]ou’ve put the argument against judicial activism quite well, and I think what you have to say deserves a hearing even though, as I argue below, I think with respect to this issue that judicial activism was warranted. (I don’t think I’ve ever contended that the Marriage Cases were anything but judicial activism, by the way – I’ve contended that sometimes, judicial activism is good.)

I see the Marriage Cases as very much in the vein of Brown v. Board of Education. The Supreme Court certainly arrogated a great deal of power to itself in that case, and a good argument could be made that it overstepped the boundaries of its powers. What’s more, just like in the Marriage Cases, Brown relied heavily on policy grounds rather than established precedent, and applied contemporary moral and policy standards to a contemporary problem without giving a lot of attention to what the authors of the Fourteenth Amendment thought they were doing. All the same, most Americans have come with the passage of time to see that Brown was not only the “right thing to do,” but more importantly that it was necessary for the Court to do it, precisely because the democratic process had stalled out due to the moral cowardice of the members of the various Legislatures – including Congress – who chose to take the easy way out and duck the issue.

Unlike the political branches of government, courts cannot duck issues. (Well, they can if they can find a standing argument, which as we know is pretty much a judicial cop-out, like in the Newdow case.) They have a duty to resolve the disputes that are brought before them, even if those disputes have been crafted the sole purpose of trying to effect changes in the law that would have been better addressed through the democratic process.

This is acceptable to me because sometimes, democracy fails us due to conflicts between majority will and the fundamental rights we have enshrined in our Constitution. It would be easy to pass an anti-flag burning law. But it’s quite obvious that despite the will of the majority to criminalize burning flags, such a law would violate the Constitutional guarantee of freedom of speech. It is up to the Courts to take the unpopular step of saying such a thing, since no one from the political branches can ever be relied upon to have the stones to defy such a law.

No one gets upset when the courts make laws, as they must, in a situation like this. No one starts howling about the imminent demise of democracy when the courts tackle the application of Article 9 of the Commercial Code in a complex multi-party transaction, and base their argument on policy grounds. There would be a negligible amount of attention paid to even a Constitutional case like application of the usury provisions of the Constitution to retail payday lenders. It’s pretty much only when a case involves race or sex that people even pay attention enough to get upset about what the courts do. Which seems pretty dumb to me, but then again, that’s what gets people upset.

It should not have come to a Constitutional challenge to get gay people the same rights that straight people have. But Pete Knight, the author of Prop. 22, put that law on the ballot for a reason, and it wasn’t to help out Pete Wilson, who he hated. Pete Knight was one of the biggest anti-gay bigots ever elected to the Legislature in recent years and he was very, very personally bitter when his younger son came out of the closet. He went directly to the voters precisely because he wanted to scare future politicians from ever again tackling the issue of same-sex marriage. And it worked – Governor Schwarzenegger, a personal proponent of gay marriage, vetoed the Legislature when it did pass a same-sex marriage law, and he cited as his reason for doing so the fact that the voters had directly spoken (in a very low-turnout election). So Knight intended to, and succeeded, in stalling the democratic process from progressing on this issue. Resort to the Courts was the only realistic way out of that situation available for at least a generation.

[Anyway,] The Court learned to behave itself after the Rose Bird campaign in 1986, as you rightly point out – precisely because Bird and her colleagues lost their bids for re-election. Amending the Constitution to take away the rights of death penalty defendants was not the answer – but voting out the judges who twisted the law away from its intent was the answer.

What this demonstrates is that the remedy for a governmental office holder overstepping his or her powers is to throw that person out of office. The remedy is not to enshrine discrimination in the Constitution. As voters, we have the right to remove Justices George, et. al. from the Supreme Court if we disapprove of the way they have conducted themselves in office.

Therefore, I think you should vote no on Proposition 8, in order to protect the California Constitution. That is a higher duty than expressing displeasure with the methodology used in a single case.

Then, you should vote against all of the Justices on the Supreme Court who signed off on the Marriage Cases when they are up for re-election. Or contribute to and support an effort to recall them. The likelihood that there will be substantial electoral backlash against these judges is great – and some of their terms are up in 2010. This directs your considered approach that the judges abused their power without tainting the Constitution in the process (or disturbing a policy result that you prefer anyway).

To corrupt the Constitution in order to overrule one instance of the Court overstepping its proper role is to try to swat a fly on a plate-glass window with a hammer. Even if you succeed, you will have lost much more than you will have gained.

His reply:

Dear TL,

Let me start by reiterating my complete and unrestrained belief that California, as a matter of public policy, should abolish its parallel civil commitment plans and extend the ability to “marry” to all people, straight and gay. It is only fair. It is only just. It is a matter of individual liberty.

In the Marriage cases, the California Supreme Court made fundamental errors in reasoning and jurisprudence for the purpose of undemocratically implementing a policy a large majority of Californians opposed the last time they were called upon to opine on it. They started with an exhaustive rendition of reasons why gay marriage is a good idea. I could not agree more with them on that. Their list was good, impressive and should long since have served as the basis for the legislature’s having extended the right to marry to gay people. But it is not the basis for a court decision. It is the basis for legislation. Or, better yet, for a state referendum through which the people could be called to the better angels of their nature to change the state constitution to extend marriage to same sex couples. Now the court has complicated this effort immensely and may well have delayed it for years.

The fact that the court decided, by fiat, to do so speaks to a fundamental misreading of its purpose and legitimate power.

“Marriage” is a defined term in the English language. It means the joining of a male and a female. It does not mean the joining of two men or the joining of two women. You will search in vain in any dictionary you can find in print (not online) that does not define “marriage” in that way. So, let’s start with the court’s first error. You cannot call marriage something it is not just because you wish it were something different. The court cannot call parking violations “murder” because murder is a defined term with a particular meaning and if it were to include parking violations with murder, the consequences would be profound. The court cannot issue an opinion that the term “woman” also means “man”. The term woman is a defined term with a particular meaning and it does not include men.

You can’t call a pig a dog and enter it in a dog show.

Using the court’s reasoning, it could have decided that the term “freedom” is the same as slave and hold that just because someone is kept in bondage does not mean he is not “free”. The court could decide that human beings grow and physically prosper by “photosynthesis”, but “photosynthesis” is a defined term and does not include human beings and the court’s finding in this way would demonstrate only its ignorance of basic English.

The California Constitution does not include in its terms a definition of marriage or a right to marry. But courts over generations have held that there is a right to marry under the California constitution. I accept that, even though it is a tortured reading of the document. However, as the court rightly observed, it is abundantly clear that the “right” to marry that the courts of California have recognized is the right for people of opposite sexes to marry and has never, ever included a right for two men or two women to marry. The right to marry is and always has been the right of people of the opposite sex to marry. So if there is truly a constitutional right to marry somehow implicit in the California constitution, then it is a right for people of the opposite sex to marry. This is probably because earlier generations of judges were a bit more familiar with the limitations of the language than is this one. For this court to decide that all of those courts were wrong and that the term marriage includes the joining of people of the opposite sex is not only not correct, it is ludicrous. It is a departure from what is settled and intended and an imposition of this court’s particular sensibilities for the clear established meaning.

Given that marriage, in basic English, means the joining of a man and a woman, the court was wrong in suggesting that homosexuals have been denied the right to marry under California law. Homosexuals have the right to marry and no one has ever denied them that right. What has been denied them is to “marry” a person of the same sex. If a gay man wants to marry, he can marry a woman and no one would ever deny him that right. It does not matter that he does not want to marry a woman. What matters is that the right contemplated under the constitution is protected and is not denied him. That was the court’s second mistake and if I had more confidence in the California Supreme Court and the basic intelligence of its members, I would think they made the mistake on purpose. As it is, I just don’t think they thought of it in their zeal to impose a new public policy on the people of this state.

It is fundamentally illegitimate for the court to decide what public policy should be, which is its third, and most serious, mistake. That is the right and power of the legislature and, ultimately, the people. I deeply object to those members of the least democratic of our institutions making public policy decisions for the people and I think we need to do whatever it takes to stop them when they do. That is why I have taken the position I have on Prop 8. The court has taken it upon itself to create a crisis in the same way as the Roe v. Wade court did and we are now in for a time of tremendous social and political upheaval as a result. We are going to arguing about something that would, in the course of time, have been handled as a matter of democratic public policy.

It has been my view that in 20 years people are going to look back and wonder what this debate was all about because gay marriage will be an accepted fact of life. Now, I think this misguided and incompetent court has created a situation that will result in years of angry debate the result of which will be to delay something that would have happened by simple evolution had the court just left well enough alone.

Brown v. Board is really nothing like the Marriage cases. It did not take a defined term and change its meaning. That court simply looked at equal protection and concluded that that meant that all citizens should have the same right to education and educational facilities. Had the Brown v. Board court proceeded as the California Supreme Court did, it would have concluded that “white” includes black and, therefore, that black children, who are actually “white” because the court says so, can go to the same schools as white children since black children are actually “white”.

What is bizarre about the Marriage cases is that the question, according to the court, is so narrow. It said that there is no question that gay people have the same formal recognition of their relationships as straight people and have all the same rights and privileges under that domestic partnership scheme as straight people. The only question it decided was whether the term “marriage” was applicable to both. It is tortured. It is stupid. It is misguided. It is lawmaking, simplistic and ham-handed.

If Prop 8 passes, nothing will actually change. What will happen is that the constitutional jurisprudence will go back to where it was before the court decided to mess with it and the right to marry will continue to extend to all men and women in the state. Gay people will be able to marry people of the opposite sex and will also have the right to set up domestic partnerships will all the trappings of a “marriage” with people of their own.

Then we can do what should have been done to begin with. We can work on educating people on the importance and fairness of creating a right to apply the term “marriage” to homosexual relationships. We can convince our fellow citizens that it is a matter of individual liberty and it is good public policy. We can then take on those for whom opposition to gay marriage is just a proxy for disapproval of homosexual conduct and hatred of homosexuals. We can expose them in naked terms for the bigots they are.

I believe that of all populations in this nation, Californians, for whom I have precious little respect on other levels, are ready for that message and ready to be convinced to adopt gay marriage as a matter of public policy. But I think this campaign is showing that they do not like having courts arrogantly impose new rules on them by fiat.

Brown was not judicial activism. It was a simple and fair reading of the Fourteenth Amendment and its implications. It might have been a new way of looking at the problem, but it was not a re-definition of an English word that already has a particular definition. The “activist” court on the Brown issue, I would suggest, was the Plessy v. Ferguson court.

I respect anyone who votes against Prop 8 and, candidly, I have not yet made up my mind on the subject. I was astonished when the dear friend I mentioned told me that his partner had voted for Prop 8. It was his position that marriage has a particular meaning and it does not include the joining of people of the same sex. He believes that giving it that meaning changes things in a way he thinks is bad.

Go figure.

While I have real concerns over what to do about this proposition, I have no doubt that the California supreme court did a stupid, thoughtless, mindless thing and anytime we can discourage it from doing such things, we should do so. If Prop 8 passes, I doubt they will be self-reflective enough to know that it is a huge public rebuke, but they should. And, just maybe, they will begin to think twice before engaging in simplistic sophistry and unconstitutional legislating.

My reply:

Dear Friend,

The “marry-your-bicycle” argument is risible. No one can marry me without my consent. My cat cannot give consent to a marriage. I might want to marry my cat, but my cat cannot marry me because it lacks the mental capacity to comprehend what’s going on and to consent to it. Consent is required even the definition of marriage set forth in the Marriage Cases which you otherwise fault.

The argument that “Well, that’s just what marriage is” relies on the social conventions underlying marriage. Historically, marriage has not excluded the idea of polygamy; when polygamy no longer worked for our Western social structures, we stopped defining polygamous marriage as “real” marriage. When our society moved beyond a point at which we limited marriages on the basis of race, the idea of what marriage is changed. So too with my marriage – my wife was married to another man and subsequently divorced him. It used to be that there was no tolerance or legal recognition for divorce; were my wife and I to be alive in that time, we would be considered adulterers living in sin. Definitions change and they do not always do so through the democratic process. Yes, it’s good when democracy is involved in that process of social evolution, but it sounds like you’re letting the perfect become the enemy of the good in this case.

I’ve not seen any response from you about my “vote out the judges, decide the policy on its own merits” argument. Contrary to your earlier remark today, Prop. 8 would make things different than they were before the Marriage Cases. Before Prop. 8, the Constitution of this state did not contain explicit discrimination against gay people. Prop. 8 would change that. Prop. 8 was, I doubt I need to remind you, submitted for ballot qualification before the Marriage Cases were announced. Therefore, it asks you to adopt an affirmative policy, not to reject a judicial decision.

If the Marriage Cases had been decided the other way, or had not been decided at all, would you still be inclined to vote “Yes” on Prop. 8? If the answer is “no,” then you are misdirecting your outrage at judicial misconduct. If the answer is “yes,” then your motive for voting “yes” really doesn’t have anything to do with the judges but rather with the idea of gay marriage itself.

Finally, passage of Prop. 8 would foreclose the idea of the democratic process – the retort to any argument about why it’s unfair to not let gay people marry would be, “But the voters decided that already back in 2008, and there’s no need to revisit that divisive debate now.” There will be no democratic process, there will be no legislation on this issue, for many, many years, for that reason alone.

[P]lease do not forget that you are being asked to amend the state’s Constitution. This is a serious business; as a lawyer, you are better able than most voters to comprehend the gravity of this act. I take you at your word when you say that you think letting gays marry is a good thing and should become law. If you vote “yes” on Prop. 8, you are voting to prevent that good, just, and desirable policy from becoming possible for at least a generation – you will be siding with bigots whom I know you condemn, in order to make a collateral point to four judges against whom a far more effective remedy is available. I think that would be a great mistake and I urge you to change your mind and vote “no.”

His closing remarks:

Dear TL,

I think you missed my point. I did not say I thought the argument about marrying your cat was a good one. Quite the contrary. But it is fully justified under the reasoning of the Marriage Cases. The supreme court (they don’t deserve capitals) reasoned by starting with the idea that everyone had a right to marry whomever he wants. It did NOT mention consent anywhere in the opinion that I can remember. So, while my cat cannot give its consent, I can give mine and enter into the relationship I want to enter into irrespective of consent. I am not saying I agree with the argument only that the court, in its recklessness, issued an opinion that justified what, in my view, cannot be justified.

Let’s take a step back. The very definition of marriage in the English language is the union of a man and a woman; i.e., opposite sex unions. That is what the term itself refers to. Not the union of a man and an animal. Not the union of a man and a man. Although this is a social convention, it is one for which a word has been created and which describes it: marriage. What the court has done is to decide that that is not what marriage means; something with which Noah Webster would probably have some trouble, as do I when it is done by fiat.

Social conventions and words can be changed but only by social action and the opinion of society, i.e., the people. Social conventions become social conventions because there is broad unanimity in the convention. With respect to gay marriage, I want to change that and get the people to a place in which they can agree to apply that term to gay unions. And I think we were on the verge of that in California. That is why the initial polling on Prop 8 had it failing. The supreme court simply gave opponents the excuse they needed to make it a bigger issue than it would have been had it gone through the democratic process. Sometimes change takes time and patience.

With regard to interracial marriage, the fact is that while interracial marriage was prohibited, it was, in fact, definitely “marriage” in that it was the formal union of a man and a woman.

Voting the judges out is a vain hope, as you well know. The only thing that matters to them is being embarrassed. We will not get rid of George and the other idiots until they die and that is not soon enough to keep them from doing more damage to the very idea of judicial review.

We will have to agree to disagree that things would change with the passage of Prop 8. Before the Marriage Cases, the California constitution (according to the court) extended a right to marry to all Californians. The right to marry was the right to marry someone of the opposite sex. Prop 8 would simply undo what the court did the only difference being that it would put what the court found was a right implied into the constitution as an enumerated one.

Can that be changed by a new referendum? I believe it can with the right argument and the right amount of time – but that time is much, much longer now because of what the court did.

With regard to your question of how I would have voted had the court not done what it did, I would have voted just as I did with Prop 22: I would have argued against it; I would have contributed to the opposition to it and I would have voted against it. I would have pointed out that it was a mean spirited way to tell gay people that they are unliked. I would have said that it is merely a proxy for disapproval of gay conduct and gay people. I would have said that it is unnecessary. I would have said that it was motivated by animus and not by outrage at the decision of an arrogant, out of control and wrong-headed court that has fewer brain cells to rub together than the inmates at [a mental health care institution].

How will I vote? I still don’t know. You may have convinced me that the greater good is in voting against this. But how else will the people bring this group of morons (the California supreme court) to heel?

And I wanted the last word:

Dear Friend,

The concept of consent is discussed in the majority opinion’s tracing of the history of the concept of marriage. Interestingly, a lot of the earlier versions of the statutes defining marriage were gender-neutral. See the slip opinion at pages 24-28 for periodic references to consent as part of marriage in a history of statutory definitions of the phrase. That qualification remains in place because the order of the court did nothing (at least, nothing that I can see anywhere in the majority opinion) to displace it.

I disagree that it is unreasonably difficult to vote the judges out of office. It happened to Rose Bird, Cruz Reynoso, and Joe Grodin – not just because of their handling of death penalty cases, although that was the most prominent issue in the campaign. A Governor has been successfully recalled in very recent memory. I do realize that the distinction between being in favor of gay marriage and overstepping the boundaries of judicial modesty may well be too subtle for most voters to understand so this is not quite the same situation as the campaign against Bird. …

Whether you vote as I would prefer or otherwise, I’m confident that you will reflect deeply on the matter and do what you believe to be right.

As I’ve written in previous comments, I take my friend at his word that he is not a bigot and that he thinks the policy of same-sex marriage is better than the policy of only permitting marriage for opposite-sex couples. Even if you are skeptical about that (as at least one Reader has already indicated) try to set that skepticism aside and evaluate where he’s coming from on the strength of his argument.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


  1. Your friends argument is this:(1) I disagree with the court’s ruling(2) I wish to show my displeasure with the court(3) Voting yes on prop 8 is a way to express my displeasure with the court, even though I’m against prop 8.(4) Expressing my displeasure with the court is more important than voting down the proposition and more important supporting state government recognizing gay marriage.Therefore, I will vote yes on prop 8.I don’t buy it because I just can’t believe someone would be that openly childish.

  2. Close. As I read it, prong 1 of his argument is really “I disagree with the way the court reached its ruling even though I like the result.” From there, yes, I think that’s about right.He also offered two reasons why he disagrees with the way the court reached its ruling — A) he claims it arrogated to itself the role of Legislature, creating policy out of whole cloth where before none existed, and B) he claims it arrogated to itself the role of dictionarian, redefining “marriage” as it saw fit rather than as that term is understood.I disagree with both critiques of the court’s methodology, but the larger point I tried to make is not dissimilar from what you’ve succinctly described — the way to object to a court should never be to add an explicit piece of discrimiantion to the Constitution, particularly when more direct means of expressing displeasure with the Court are available.

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