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Winning By Losing On Prop. 8

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By Jeff Amestoy
Saturday, March 21, 2009; Page A13

The California Supreme Court will uphold Proposition 8, the ban on same-sex marriage passed by the state's voters in November. It is a decision that progressives ought to welcome.

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It is ordinarily the better part of wisdom not to predict court decisions on the basis of questions asked by judges at oral argument. But the California Supreme Court left little doubt that it would reject the contention of gay rights advocates that it should ignore the results of the ballot initiative that, in effect, reversed the same court's opinion recognizing same-sex marriages.

The justices appeared to be willing to uphold the 18,000 gay marriages that were performed in California before Proposition 8 passed.

That will bring little comfort to those who looked to California to broaden the path to marriage equality.

Yet, as difficult as the likely outcome of the case will be for those of us who support gay marriage, the court's rationale will almost certainly strengthen a fundamental tenet of the progressive movement: the right of ordinary citizens to maintain authority over their state constitutions.

Early 20th-century progressives had a deep distrust of state judicial authority for the very good reason that many decisions were antithetical to a more just and humane society. The relative ease with which Californians -- and residents of other states -- can amend their state constitutions owes much to the "direct democracy" reforms led by progressives.

When Theodore Roosevelt, the Progressive candidate for president in 1912, proposed the recall of state court decisions to enable "the people themselves" to decide constitutional issues, he was responding to our democracy's inherent tension between judicial authority and democratic legitimacy. And when Larry Kramer, the preeminent progressive scholar of "popular constitutionalism," criticized William Rehnquist's Supreme Court, he noted, "The Supreme Court is not the highest authority in the land on constitutional law. We are."

Unfortunately for supporters of gay marriage, the most pronounced demonstration of popular constitutionalism in recent years has been the adverse response of voters to judicial decisions advancing the constitutional claims of same-sex couples. The idea that judicial authority is not ultimate constitutional authority can be particularly unsettling when citizens choose to amend their state constitutions to limit rather than expand rights.

In fact, the current status of the same-sex marriage issue in our society is largely the product of a critical distinction between state constitutional law and federal constitutional law. Simply put, state constitutional interpretation is not reserved exclusively for judges.

The methods by which voters may amend state constitutions, although varying from state to state, are far more flexible than the process by which the U.S. Constitution may be amended. A decision of the U.S. Supreme Court may be "overturned" by constitutional amendment, but that event is rare. It has happened only four times in our nation's history, and once, it required a civil war. In contrast, in the past decade, citizens in more than two dozen states have amended their constitutions through popular vote to reverse or forestall favorable consideration of gay marriage claims.

State courts stand at the intersection where constitutional law meets direct democracy. Indeed, the progressive movement engineered the traffic pattern. The road may lead to direct judicial recognition of same-sex marriage, unencumbered by voter amendment, as in Massachusetts and Connecticut, or it may lead to court decisions -- such as those in Vermont, New Jersey and California -- that find a constitutional right to all the rights and benefits of marriage.

But every state constitutional court must acknowledge that in a system that preserves the right of citizens to amend their constitutions, a judicial decision may be the opening argument in a process that preserves the ultimate constitutional authority of the people.

The writer is a fellow at the Center for Public Leadership at the Harvard Kennedy School. He is a former chief justice of the Vermont Supreme Court and author of Baker v. State, the 1999 opinion of the court that led to the nation's first civil union statute.


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