Some Thoughts On Strauss v. Horton

Here are my thoughts about the California Supreme Court's decision in the Prop. 8 case. Needless to say, I speak only for myself, and not for my partners, past or present clients, or anyone else.

This was not a case about same-sex marriage. Instead, the Court went out of its way to reaffirm that the doctrinal holdings of the Marriage Cases remain intact. Thus, Strauss v. Horton leaves unchanged the rule set forth in that case that discrimination on the basis of sexual orientation must satisfy "strict scrutiny."

Instead, the decision is about how, and under what circumstances, the California Constitution can be changed. Here the plaintiffs were facing an uphill battle. Given prior decisions upholding constitutional amendments that limited rights in a number of respects (e.g., reinstating the death penalty, eliminating the state's version of the exclusionary rule, eliminating affirmative action), it was pretty clear before Strauss v. Horton that the constitution did not prohibit such initiatives. Thus, the Court's reaffirmation of the principle that limits constitutional revisions to changes in the constitutional structure or plan was solidly grounded in existing law. In contrast, there is very little support, other than snippets from a few decisions, for the converse idea: that rights-limiting amendments are impermissible.

There were, moreover, three quite practical reasons for finding the opposing view unappealing. First, it's difficult to see how rights that had only been a part of the California Constitution for less than a year were so fundamental a part of the state constitution that they couldn't be changed by the electorate. Second, a rule that made judicial decisions that expand rights effectively unchangeable by the electorate might make courts much more reluctant to read new rights into the California Constitution. THird, it's difficult to draw principled distinctions among rights to demarcate those rights that can be changed by an amendment and those rights that could only be limited by a revision.

All in all, the majority opinion is careful, scholarly and respectful of the opposing interests and views at stake. The Court has every reason to feel that it has undertaken an important job and done it well.

The end result is to return the issue of same-sex marriage to the political process. This is not a bad thing. Whatever one might think of the initiative process, same-sex marriage is perfectly suited for direct democracy. Unlike many other initiatives, the issue is simple and understandable.

No one who can read the political leaves doubts that same-sex marriage will be legal sooner or later. Its triumph is inevitable. It will be far better in the long run to achieve that victory through the ballot box than through the courts.