What if California voters overturn the gay-marriage decision?

Many conservatives seem to believe that the California Supreme Court’s recent decision mandating gay marriage constitutes some sort of threat to marriage and the Republic, and they are now attempting to place on the ballot a constitutional initiative to overturn it. And surely this would seem to do the trick: the Court can’t say that an initiative amending the state constitution is itself unconstitutional, can they?

Well, actually, they can. There are two ways, both of which have precedent behind them but only of which is credible.

The first is to rely on a precedent from 1967, Reitman v. Mulkey. Reitman involved an initiative that had overturned the state’s 1964 Fair Housing Law. The California Supreme Court voided the initiative on federal constitutional grounds, saying that it was a violation of the US Constitution’s Equal Protection Clause, because enforcing that initiative, and declaring that initiative to be good law, would essentially involve the state in housing discrimination. The US Supreme Court upheld this reasoning. And theoretically, the state court and the federal courts could do the same thing with gay marriage.

If that sounds a little incoherent to you, you’re not alone: in the wake of Reitman, the greatest Constitutional scholar of them all, Charles Black, referred to the “state action” doctrine upon which Reitman relied as a “conceptual disaster area.” I have a hard time believing that this would have much purchase, especially with today’s federal courts. A version of this was tried with the state’s anti-affirmative action initiative, and was swept aside by the Ninth Circuit.

But there is a more plausible stategy, at least in my view.

Although the initiative process can be used to “amend” the Constitution, it cannot be used to “revise” it. The California Supreme Court has actually struck down initiatives as unconstitutional “revisions.” These initiatives usually involved broader reforms, but it is not outside the bounds of reasoning to say that taking away of fundamental right such as marriage and depriving a suspect class of equal protection would constitute such a revision.

Conservatives will, of course, scream at such judicial “usurpation,” although as always, it depends upon whose ox is gored: they didn’t complain much at Bush v. Gore. In any event, the Court could always say that if the public wants to revise the Constitution, there is the perfectly good way of doing so: a Constitutional convention, or a legislatively-approved referendum. It’s no usurpation to say that certain fundamental rights are off-limits to popular majorities.

I strongly doubt that the state Supreme Court would take this tactic if the results of the initiative this November are the same as they were in 2000, i.e. 61% voting against gay marriage. But this November figures to be a lot closer. What if, say, the initiative wins with 50.5% of the vote? And besides, lots of people on both sides of the aisle believe that the initiative process has gotten completely out of hand: if this would signal a renewed effort to cabin the initiative, many would cheer.

It’s just a thought, but stay tuned: if it happens you heard it here first.

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.