Whatever one's view of gay marriage, one has to admit that many arguments in favor of it rest on some notion of basic rights. Whether that claim is true is not my concern now. However, in the interest of full disclosure, I think that it is. Whatever one's conception of basic rights, in a constitutional democracy such as our own, such rights are guaranteed by the constitution's bill of rights at the federal level, and by state's constitutions at the state level. The structure our constitutions guarantees that constitutional rights do not depend in the first instance on the whim of the people. We cannot vote that some minority group be stripped of its constitutional rights. Constitutional rights are guarantees, aren't they?
Let's set the stage. Here's aspiring legal scholar, George Will:
In November, 13,402,566 California voters expressed themselves for or against Proposition 8, which said that their state's Constitution should be amended to define marriage as a relationship between a man and a woman. The voters, confident that they had a right to decide this question by referendum, endorsed Proposition 8 by a margin of 52.3 to 47.7 percent
Well, that's the question isn't it–whether the voters were acting constitutionally (thinking you are, by the way, does not mean you are). Do the voters get to decide which rights people have according to the constitution by constitutional referendum? On the one hand, the constitution is malleable by referendum. And good thing too. But Will argues that this right has no boundaries. But this power of referendum certainly cannot be infinite. I mean, for instance, you can't have explicitly contradictory provisions. That would mean legal chaos. You cannot, in other words, answer every constitutional question by referendum. This way we cannot have an election stripping Mormons of the right to vote, or women of the right to be physicists. So, in other words, which rights are of this type is the question. Does civil marriage constitute one such right? Here's Jerry Brown (in the words of George Will):
Now comes California's attorney general, Jerry Brown — always a fountain of novel arguments — with a 111-page brief asking the state Supreme Court to declare the constitutional amendment unconstitutional. He favors same-sex marriages and says the amendment violates Article 1, Section 1, of California's Constitution, which enumerates "inalienable rights" to, among other things, liberty, happiness and privacy.
And that's an interesting argument, I think. If certain rights are inalienable, then it's constitutionally prohibited that they be alienable by referendum, even if that referendum was believed to be constitutional by the voters. The proper place to answer such questions–that is, about the constitutionality of the questions–is also provided in our constitutions–the courts, whose job it is to interpret the law. One needs generally to interpret documents whose meaning and provisions are sometimes unclear. And this seems like an instance of that. But not to George Will:
Brown's audacious argument is a viscous soup of natural-law and natural-rights philosophizing, utterly untethered from case law. It is designed to effect a constitutional revolution by establishing an unchallengeable judicial hegemony. He argues that:
The not-really-sovereign people cannot use the constitutionally provided amendment process to define the scope of rights enumerated in the Constitution; California's judiciary, although established by the state's Constitution, has the extra-constitutional right to supplement that enumeration by brooding about natural law, natural justice and natural rights, all arising from some authority somewhere outside the Constitution; the judiciary has the unchallengeable right to say what social policies are entailed by or proscribed by the state Constitution's declaration of rights and other rights discovered by judges.
What is natural justice? Learned and honorable people disagree. Which is why such consensus as can be reached is codified in a constitution. But Brown's reasoning would make California's Constitution subordinate to judges' flights of fancy regarding natural justice. Judges could declare unconstitutional any act of Constitution-revising by the people.
That's the constitutional role of the judiciary (as established by case law). Their having this role does not mean the people of California are not "sovereign." That misses the point of Brown's objection. And it misses the point of our constitutional structure. It's the constitutional job of the judiciary to interpret the law. How do they do that? You can't ask the law you're interpreting, because you have to interpret it. What to do? Antonin Scalia, for instance, uses a dictionary. Clarence Thomas, get this, natural law–whatever that is.