Nudging Proposition 8: What the Court Should Have Done With Same-Sex Marriage

How could the California Supreme Court have overturned Prop 8 yet allowed the voters to ban same-sex marriage through a ballot measure — and done so in a principled way? Here’s how.

The Prop 8 case presented the California Supreme Court with two unpalatable options: either 1) declare the Proposition unconstitutional, disrupting state constitutional precedent and telling millions of voters that their votes are meaningless; or 2) uphold a bigoted ballot measure. The Court chose 2), but limited it as much as it could, by maintaining strict scrutiny for gays and lesbians, and leaving 18,000 same-sex marriages intact.

But I think there is a third option, which everyone missed (including me — I just thought of this yesterday).

The Court should have said that

1) voters may amend the state Constitution to ban same-sex marriage; but

2) in order to destroy a fundamental right, the voters must be told in the clearest possible language on the ballot that they are destroying this fundamental right (which they were not); and thus

3) same-sex marriage opponents must put another measure on the ballot to do this. If the voters approve this subsequent measure, it will become part of the California Constitution.

My thinking on this stems from Richard Thaler and Cass Sunstein’s recent book, Nudge: Improving Decisions About Health, Wealth, and Happiness, which certainly has flaws, but contains a critically important insight: the “architecture” of choice matters. It is unrealistic to say merely that people should make choices, and have done with it. Policymakers can and should be “choice architects”: leaving people’s freedom to choose absolutely intact but facilitating their making better choices if they so desire. In many circumstances, some choice architecture must be chosen, so to argue that a choice architect is somehow “distorting” someone’s choice itself completely distorts the issue at hand.

Consider the simplest and clearest example from Thaler and Sunstein’s work: kids eating too many desserts at cafeteria lines. Cafeteria administrators could say that the cafeteria will not serve desserts. Or they could say that they will do nothing, or exhort parents to teach their kids better habits.

OR–they could realize that childrens’ choices are profoundly affected by where in the cafeteria line a dessert is presented. Put the desserts in the back of the line, or in hard-to-reach places, and children will eat far fewer desserts. Changing the position of the dessert in the line does not prevent children from making the choice, but it will reduce dessert consumption.

This works cognitively. MIT behavioral economist Dan Ariely notes that when subjects in psychology experiments are simply exposed to material referencing the Ten Commandments prior to encountering situations involving choosing between dishonest and honest responses, they choose the more honest approach a significantly greater portion of the time. This is true even if they are not told what is in the Ten Commandments!

Initiatives fit squarely into Thaler and Sunstein’s nudging framework because they require voter choice, but the information that voters receive when they encounter the ballot can play a critical role in framing their choice. The pivot point, of course, is the ballot description: this description does not and cannot mirror the actual text of the initiative (which often runs to dozens of pages), so what it says constitutes a crucial piece of choice architecture.

Right now, ballot description language is virtually unregulated. It is essentially controlled by the Attorney General, with minimal judicial review. Who should regulate it? I don’t know as a general matter, but when fundamental rights are at stake, then it stands to reason that the judiciary should play a particularly active role in establishing the principles and norms underlying ballot descriptions. The ever-present possibility of the initiative overrunning fundamental rights practically begs for a law of ballot descriptions.

Back to Prop 8. The Court should have ruled that any initiative that will overturn fundamental rights set forth in the state’s Bill of Rights must contain language explicitly warning voters that voting for the measure will overturn a fundamental right guaranteed by the state’s Constitution and Bill of Rights, and make all such rights subject to repeal by a simple majority. Like the court in Miranda v. Arizona, the court might even want to enunciate explicit language for future measures (similar to the now-iconic “you have the right to remain silent”).

Such an approach would have several advantages, both doctrinal and political:

1) It would provide extra protection for rights deemed “inalienable” by the constitution itself;

2) But it would also allow voters to make the choice and have the final say in the matter.

It would also have carried the important political benefit of giving the No forces another chance to defeat this thing and get their heads out of their collective sphincters.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.