Recall specter hangs over high court as it considers Prop. 8 challenges
Backers of the measure banning gay marriage have said they will target justices who vote to overturn it. Legal scholars say the court has no clear path to tossing out Prop. 8.
By Maura Dolan
November 19, 2008
Reporting from San Francisco -- Six months ago, California's highest court discarded its reputation for caution and ended the state's ban on same-sex marriage.
Now the moderately conservative state Supreme Court is being asked to take an even riskier step -- to overturn the November voter initiative that reinstated the gay-marriage ban and possibly provoke a voter revolt that could eject one or more of the justices from the bench.
The court is under intense pressure from all sides. Its first response to the challenges may come today, when the justices meet privately in a weekly conference to decide which cases to accept for review.
Legal scholars say case law does not give the court a clear path for overturning the voter-approved measure. The state high court -- six Republicans and one moderate Democrat -- generally defers to the will of the people. Only twice has the court rejected initiatives on the legal grounds cited by opponents of Proposition 8.
Despite the uncertainties, Gov. Arnold Schwarzenegger has said publicly that he expects and hopes that the state high court will reject Proposition 8.
Atty. Gen. Jerry Brown, whose office must defend it, opposed the measure, and 44 legislators have called on the court to overturn it.
Civil rights groups, churches and local governments have filed six lawsuits asking the court to declare the measure an illegal constitutional revision. Letters also have poured into the court pleading for urgent action, and anti-Proposition 8 rallies have attracted large crowds statewide.
At the same time, opponents of gay marriage have warned that they will work to oust any justice who votes against Proposition 8, a threat particularly palpable in a year when voters in other states have booted six state high court justices after campaigns by special interest groups.
"It is a time of lots of crocodiles in the bathtub," said Santa Clara University law professor Gerald Uelmen, who has followed the court for decades. "Their oath requires them to ignore these kinds of political threats. But the threat of having to face a contested election is a significant one."
Uelmen was using a metaphor coined by the late California Supreme Court Justice Otto Kaus, a Democrat who served on the court with Chief Justice Rose Bird before voters removed her and two justices over their opposition to the death penalty.
Kaus later said that as hard as he tried to decide cases impartially, he was never sure whether the threat of a recall election was influencing his votes.
"It was like finding a crocodile in your bathtub when you go to shave in the morning," Kaus said. "You know it's there, and you try not to think about it, but it's hard to think about much else while you're shaving."
The current court has resisted outside pressure. Despite threats of a recall, four justices in 1997 voted to overturn a state law that required parental consent for teenagers to obtain abortions. The ruling prompted a campaign to unseat Chief Justice Ronald M. George and Associate Justice Ming W. Chin. Both were forced to raise money and mount campaigns but survived handily.
The official Proposition 8 campaign has discouraged supporters from threatening a recall while the court is considering lawsuits to overturn the measure.
"We think the discussion of a recall at this point is premature and not helpful to the current situation," said Andrew Pugno, a lawyer for the campaign. "The court should have a chance to do the right thing."
But if the court voted to overturn Proposition 8, "no one would be able to stop" a recall, he said.
With the state and backers of Proposition 8 joining opponents in asking for immediate review, the court will find it difficult to dismiss the suits without a hearing or without referring them to lower courts. A decision to review the cases, however, would not necessarily mean that the court was in favor of the challenges.
The issue before the court is technical: whether Proposition 8 amounted to a sweeping revision of the state Constitution, which can be put on the ballot only by a two-thirds vote of the Legislature or a constitutional convention, or whether it was a more limited amendment, as its backers contended. Proposition 8 reached the ballot after a petition drive.
The court has defined a revision as a change in the fundamental structure or foundational power of state government or one that makes "far-reaching changes in the nature of our basic governmental plan."
Courts in Oregon and Alaska have rejected revision arguments in upholding anti-gay-marriage amendments, and the California Supreme Court has dismissed them in at least six challenges of initiatives, including measures that reinstated the death penalty, changed tax law (Proposition 13) and imposed term limits.
In 1948, the court overturned an initiative as an illegal revision because it made a wide array of changes in the state Constitution. And in 1990, the court struck down another initiative that would have required the courts to apply federal law when determining the rights of criminal defendants.
Opponents of Proposition 8 contend that the measure is a constitutional revision because it prohibits California courts from exercising their core duties to protect the rights of a minority and eviscerates equal protection for a constitutionally protected class of people.
If Proposition 8 is upheld, "California courts would be rendered powerless to enforce the guarantee of equal protection for a historically stigmatized and disadvantaged minority," said one of the lawsuits, brought by the National Center for Lesbian Rights and other groups.
Some of the petitioners have urged the court to consider a hypothetical constitutional amendment that reinstated a ban on interracial marriage. The state high court struck down such a ban on federal grounds in 1948 and today's court cited it in overturning the first gay-marriage ban in May.
But Proposition 8's Pugno said voters could indeed resurrect a ban on mixed-race marriages if the issue had been decided purely on state constitutional grounds.
The revision challenge "is a very creative argument, but it really demonstrates they don't have anything left to challenge this," Pugno said. "It's really a long shot. Case after case has challenged what voters have done and the court time after time has upheld the people's power."
He contended that gay rights lawyers resorted to the revision argument because they wanted to keep the cases out of federal court. If the lawsuits had cited federal constitutional grounds for overturning Proposition 8, they could eventually have reached the U.S. Supreme Court.
Gay rights lawyers, fearful that a high court defeat on same-sex marriage would set the movement back decades, have urged supporters to stay out of federal court.
Some legal scholars also have expressed doubt that the California Supreme Court would rule in favor of the challengers, but 19 law professors, including Harvard's Laurence Tribe, a constitutional scholar, have urged the court to strike down the measure as an illegal revision.
In deciding whether to review the lawsuits, the California Supreme Court also could take up the question of the validity of same-sex marriages entered into before the election.
Whatever the court decides, its historic May marriage decision will continue to be influential. It elevated sexual orientation to the constitutional status of race and gender, a ruling that voters did not overturn.
"I don't believe this is a court that is going to give in to political pressure either way," said Hastings law professor Donna Ryu, who wrote the law professors' letter to the court. "I believe they will exercise their duty as the highest judicial officers of the state."
It's pretty damned clear. Prop 8 is not a revision.