Judicial politics and gay marriage

On August 16, 2010, the United States Court of Appeal for the Ninth Circuit ordered a stay of Judge Vaughn Walker’s ruling on Prop 8 in Perry v. Schwarzenegger (N.D. Cal., August 4, 2010, No. C 09-2292 VRW)  __F. Supp. 2d__ [2010 WL 3025614].  Pending the outcome of the appeal, California may join five other states and the District of Columbia in permitting same sex marriages.  In two states, New Hampshire and Vermont, recognition of same sex marriages was achieved legislatively.  Also, in the District of Columbia, the mayor signed into law a bill by the Council of District of Columbia. 

In the rest of the states, recognition of same sex marriage was reached judicially.  In Connecticut, the state Supreme Court struck down a law banning marriages in Kerrigan v. Commissioner of Public Health (Conn. 2008) 957 A.2d 407.  In Massachusetts, the Supreme Judicial Court found a similar law unconstitutional in Goodridge v. Dept. of Public Health (Mass. 2003) 798 N.E.2d 941.  So too did the Iowa Supreme Court in Varnum v. Brien (Iowa 2009) 763 N.W.2d 862.  Unlike these states, California’s prohibition on same sex marriage was struck down not by the state’s highest court, but by a federal trial court.  In fact, the Supreme Court of California upheld Prop 8 against a challenge in Strauss v. Horton (2009) 46 Cal.4th 364. 

In Strauss, the majority of the Court decided that Prop 8 was an amendment to the state Constitution rather than a revision.  A revision occurs where there is a substantial alteration of the entire constitution and requires a two-thirds vote from each house of the California legislature and ratification by a majority of voters on a ballot initiative.  An amendment, on the other hand, requires only approval by a majority of the electorate on a ballot initiative.  Accordingly, the 52.24% of voters in favor of Prop 8 satisfied the constitutional requirement to amend. 

A cynic might suspect that that the Supreme Court of California’s decision was influenced by the justices’ personal interest in job security rather than upholding the Constitution.  Justices on California’s high court require periodic retention votes at the general election.  It would not be unprecedented for voters to oust the state’s Supreme Court justices for taking positions contrary to majority interests.  In 1986, voters decided not to reconfirm justices Rose Bird, Cruz Reynoso and Joseph Grodin subsequent to a campaign focusing on the justices’ opposition to the death penalty. 

It seems that Iowa may soon join California in removing justices from the state’s high court for its stance on a topic contrary to public opinion.  Iowa for Freedom, a grassroots campaign spearheaded by former gubernatorial hopeful Bob Vander Plaats, seeks to oust three justices for their “blatant judicial activism” in striking down the gay marriage ban.

Note: Chief Justice Ronald M. George recently announced plans to retire and was probably not be seeking reelection when he penned the majority decision in Strauss.

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