Among some of the dreck commentary on the Prop 8 case has been some good stuff, and Marci Hamilton -- our friendly conservative separation of church and state representative -- uses her forum to focus on the process. No, not the judicial process:
If ever one might question the wisdom of these western-style direct-democracy systems, it was surely then. First, the state’s law had been amended through a secret vote of the people, who never had to explain to anyone why they voted the way they had. (Voters, of course, aren’t up for re-election, and have no obligation to disclose their votes or the reasons that lay behind them.) Then, when the time came to defend the initiative’s constitutionality under state or federal law, it was not the state or its offices, which are accountable to all the people, but rather the special interest groups, who were in the position to make arguments that could affect not just this case, but also all litigation involving state law.She argues that there is a strong case to be made, particularly if the Supreme Court has long not take it off the table, that this is a violation of the Guarantee Clause. This is the little known clause, which was one thing used during the Reconstruction to hold the defeated states in abeyance until they were "republican" enough, that guarantees to "every state in the union" a "republican form of government." Unlike in respect to domestic violence, this is not only upon request. And, the "United States" is involved, which some argue includes the courts independently via judicial review, not just the Congress and the President (and I assume, the courts pursuant to laws and such arising from these actors).
"Republican" doesn't mean direct democracy, but it is quite debatable just where in the middle we should be. I am quite wary of the process in California, partially on republican grounds, and am open to examining using the clause in federal judicial review. Various questions are in fact at least in part Guarantee Clause in nature, such as the "one person, one vote" issue. For the time being, however, the best check on the federal level at the very least should be careful scrutiny when:
"prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry."Some miss the point, but this is the spirit of the Prop 8 opinion, even if it follows Justice Kennedy's Romer lead in not expressly using heightened scrutiny. Like Justice O'Connor in Lawrence v. Texas, a somewhat stronger flavor of "rationality" is required in such cases. This is even more so when the legislation is not the product of representative democracy with the clashing views and compromises of that system. Under that rubric, the California legislature would have passed a same sex marriage law, just as Washington State (yay!) just did. If allow some form of ballot process, and I'm for a more limited process myself that works with the legislature (e.g., the legislature submits certain things to a vote or is required to address a question), the possibility of majority infringement of minority rights can increase. Judicial review is a proper check.
Meanwhile, I appreciate this defense of substantive due process. a concept as cited in this speech by one of its proponents, that has had a long history, even in name.