Breaking News

Same-sex marriage symposium: Proposition 8 and the fundamental right to self-government

The following contribution to our same-sex marriage symposium comes from Jeff Mateer, General Counsel for the Liberty Institute, a nonprofit law firm, dedicated to defending and restoring religious liberty across America — in our schools, for our churches and throughout the public arena. Liberty Institute’s vision is to reestablish religious liberty in accordance with the principles of our nation’s Founders.  

 In his famous dissent in In re Winship, Justice Hugo Black laments that the Supreme Court’s decision invalidated a duly-enacted law expressing the will of the people, based not on faithful adherence to the text of the Constitution but on the “shifting, day-to-day standards of fairness of individual judges.” Arguing against the idea that striking down an unfair law furthers individual freedom, he aptly notes that this “ignores … perhaps the most fundamental individual liberty of our people – the right of each man to participate in the self-government of his society” (emphasis added).

In Justice Black’s view, “[t]he people, through their elected representatives, may of course be wrong in making … determinations [of fairness], but the right of self-government that our Constitution preserves is just as important as any of the specific individual freedoms preserved in the Bill of Rights.” The Tenth Amendment affirms that the people or the states retain the right to determine their fate on all matters not specifically delegated to the federal government or prohibited to the states. Justice Black further opines, “The liberty of government by the people … should never be denied by this Court except when the decision of the people as stated in laws … conflicts with the express or necessarily implied commands of our Constitution.”

Justice Black’s words remain instructive today. Twice in eight years, the people of California exercised their right to self-government through the initiative process by establishing that the definition of marriage should remain now as it historically has been, a union between a man and a woman. In March 2000, 4.6 million people – over sixty percent of those who voted – affirmed that the California family code should codify this traditional definition of marriage. After the California Supreme Court invalidated this family code provision in In re Marriage Cases, the people again used the initiative process to pass Proposition 8, placing the traditional definition of marriage in the California Constitution. Over seven million people turned out on election day to vote in favor of Proposition 8 and to let their voices be heard. In doing so, they exercised the “most fundamental individual liberty of our people,” the right to self-government.

If anything, the initiative process is the most direct expression of the people’s political will because it is not sifted through the medium of elected officials. Furthermore, empirical study demonstrates that the initiative process accurately reveals the will of the majority. In his book For the Many or the Few, University of Southern California Professor John G. Matsusaka documents ten years of empirical research demonstrating that the initiative process accurately represents the will of the people, and not special interests. Dr. Matsusaka compares the re­sults of his economic analysis of state policies with the results of stu­dies by the Advisory Commission on Intergovernmental Relations, the American National Election Studies, and Los Angeles Times/ABC News polls. Finding that the policies of states with the initiative process better follow the will of the people than do those of states that do not have such a process, he concludes: “Not a single piece of evidence links the initiative to nonmajority policies …. [B]ased on the facts, the initiative serves the many and not the few.”

With hesi­tancy and trepidation, then, should the one unelected, national branch of government veto the expressed will of the people. As Justice Black concluded, this should only be done when the “decision of the people … conflicts with the express or necessarily implied commands of our Constitution.”

In Perry v. Brown, the Ninth Circuit ignored Justice Black and substituted two judges’ views of fairness for the explicitly expressed views of seven million Californians without actually establishing that Proposition 8 conflicted with the U.S. Constitution. The appellate court engaged in mental gymnastics to determine that there is no reasonably conceivable basis for defining marriage between a man and a woman, and that therefore Proposition 8 failed rational basis review.

As stated in Dallas v. Stanglin, rational basis scrutiny is “the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause.” It is such a low threshold that the party defending the law “has no obligation to produce evidence to sustain the rationality of a statutory classification” (Heller v. Doe). Indeed, the Court explained in Heller, “the burden is on the one attacking the legislative arrangement to negate every conceivable basis which might support it, whether or not the basis has a foundation in the record.” The contested law can result in inequality and “may be based on rational speculation unsupported by evidence or empirical data,” and remain constitutional.  Rational basis review therefore “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.”

There are numerous, rational reasons why a state would want to limit marriage to opposite-sex couples. Marriage is society’s most important social institution because it naturally produces children and ties them to their biological parents. For this reason, the Supreme Court found in Loving v. Virginia that the institution is “fundamental to our very existence and survival.” Justice Sandra Day O’Connor, in her concurring opinion in Lawrence v. Texas, concluded that “preserving the traditional institution of marriage” is a “legitimate state interest.” It is rational for a state to determine that children fare better when raised by their biological parents (as Professor Mark Regnerus’s study found, for example), and therefore reserve the title of marriage for these family structures, while also providing rights and protections for same-sex families through domestic partnerships.  As stated in Johnson v. Robison, “When … the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not, we cannot say that the [law’s] classification of beneficiaries and nonbeneficiaries is invidiously discriminatory.” The rationale behind Proposition 8 is one of biology – because it helps tie children to their biological parents by encouraging citizens to marry persons of the opposite sex – and not bigotry.

Even if one disagrees with the reasons put forward by the proponents of Proposition 8, as the Supreme Court stated in FCC v. Beach Communications, “[t]he assumptions underlying [a law’s] rationales may be erroneous, but the very fact that they are ‘arguable’ is sufficient, on rational-basis review, to ‘immunize’ the [law] from constitutional challenge.” Under this highly deferential standard of review, these arguably rational reasons are enough to reject that the motivation behind Proposition 8 was solely animus towards homosexuals.

 Furthermore, our nation is currently engaging in a robust debate on same-sex marriage. This debate should be allowed to play out in our democratic institutions and should not be short-circuited by the courts. Because the Constitution does not address the issue, any definition of marriage will only gain legitimacy if it is decided upon by the people, because this power is reserved to the states under the Tenth Amendment.

Just three years ago, after the enactment of Proposition 8, nine of the most prominent gay rights groups, including the ACLU, the Human Rights Campaign, Lambda Legal, and GLAD, co-authored a policy paper titled “Why the ballot box and not the courts should be the next step on marriage in California.” The paper contends that filing a federal lawsuit to try to win the marriage battle “is a temptation we should resist.” At that time, these groups argued that “rather than filing premature lawsuits, we need to talk to our friends, family, and neighbors, and help them understand why denial of the freedom to marry is wrong.”

A final quote from Justice Black’s dissenting opinion in In re Winship is pertinent: “When this Court assumes for itself the power to declare any law—state or federal—unconstitutional because it offends [a] majority[] [of the court’s] own views of what is fundamental and decent in our society, our Nation ceases to be governed according to the ‘law of the land’ and instead becomes one governed ultimately by the ‘law of the judges.’” In order to preserve the people’s most fundamental individual liberty and uphold the rule of law rather than the rule of man, the Supreme Court should reverse Perry v. Brown.






Recommended Citation: Jeff Mateer, Same-sex marriage symposium: Proposition 8 and the fundamental right to self-government, SCOTUSblog (Sep. 17, 2012, 1:26 PM),