Gay Rights: Taming the Crocodile in the Bathtub

      Long before gay marriage was a major legal issue, the California Supreme Court had to decide the constitutionality of a package of anti-crime proposals approved by the state’s voters as Proposition 8 in 1982. The critical vote upholding the ballot initiative a few months later came from Justice Otto Kaus, a well regarded judge then recently appointed to the state high court.
      After voting to uphold the initiative, Kaus reflected in an interview on the political stakes for a judge ruling on the constitutionality of a voter-approved ballot initiative. “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 California Supreme Court is set to hear arguments on March 5 on the constitutionality of another ballot initiative — by coincidence, also designated as Proposition 8. The new Proposition 8, approved with 52 percent of the vote on Nov. 4, aims to overturn the state high court’s landmark ruling five months earlier guaranteeing the right to marriage for same-sex couples.
      So far, supporters of Proposition 8 are avoiding direct threats to retaliate against any justices who vote to invalidate the ballot measure. But the legal briefs filed by the Proposition 8 campaign and dozens of other anti-gay marriage groups make clear that they will view a ruling to strike down the measure as a direct assault on democratic government .
      Legal arguments in the case, Strauss v. Horton, are much closer than the pro-Prop 8 rhetoric suggests. The same-sex couples and hundreds of pro-gay marriage groups challenging the initiative argue that the measure amounts to a “revision” of the state constitution, not a simple “amendment.” Under the state constitution, they explain, a “revision” cannot be proposed for voter approval by initiative, but only by the methods that predated the initiative process: a constitutional convention or a two-thirds vote in the state legislature.
      The state attorney general’s office rejects that argument, but — reversing its earlier defense of Proposition 8 — now finds the measure invalid because it violates the state constitution’s overarching command of equal rights. Specifically, Prop 8 denies a fundamental right — marriage — to a “suspect” class of persons, gay men and lesbians, entitled to special scrutiny of any laws singling them out for disfavored treatment.
      The legal issues are close, and the California precedents inconclusive. But the justices who divided 4-3 in the original case may be free to decide this one without undue fear of the crocodile in the tub.
      Judicial politics in California is substantially different from the 1980s. Back then, anti-tax, anti-crime, and other conservative groups had an easy target for their attacks on the state’s judiciary: Chief Justice Rose Elizabeth Bird. Bird was as politically tone deaf as she was ideologically liberal; the combination brought about her defeat along with two other judicial liberals in the 1986 elections.
      Since then, the California Supreme Court has been more conservative, yes, but also — on balance — more judicious and less doctrinaire. That evolution helps explain why four years after Bird’s ouster, the court in 1990 suffered no serious political consequences when it struck down a popular anti-crime initiative. Prop. 115 aimed to prevent state courts from going beyond federal law on constitutional protections for defendants. Notably for the current case, the court in Raven v. Deukmejian held Prop. 115 to be an improper “revision” of the state constitution because it would have altered the charter’s “substance” and “integrity.”
      Gay rights politics is also changing — voter approval of Prop. 8 to the contrary notwithstanding. Gay marriage supporters lost by only 4-1/2 percentage points: the closest of more than a dozen state elections. Nationwide, polls find growing support for gay marriage — and solid majorities between 55 percent and 60 percent for legal recognition for same-sex couples either as marriage or civil unions.
      The two other state supreme courts that have recognized marriage rights for same-sex couples — Massachusetts in 2003 and Connecticut last October — seem to be holding their own despite agitation by anti-gay marriage groups. And supreme court justices in the heartland state of Iowa gave every appearance of being well-focused on legal, not political, issues when they heard arguments in a gay marriage case in December; the case, Varnum v. Brien, remains under advisement.
      Conventional wisdom is shifting more strongly on other gay rights issues, including the once hot-button issue of gays in the military. In a Washington Post/ABC News poll in July, 75 percent of those surveyed favored allowing gays and lesbians to serve openly in the military — contrary to the current “don’t ask, don’t tell” policy. And anti-gay campaign planks appeared to give no boost to candidates in the November 2008 congressional elections. Rep. Barney Frank, the openly gay Democrat from Massachusetts, goes so far as to say there is now “no political price to pay” for supporting gay rights measures.
      Frank’s assessment may be truer in congressional than in state or local races, especially in red states in the South. But it helps suggest that California’s justices need not fear individual or institutional retaliation whichever way they rule on Prop. 8. The case may be hard, but the crocodile in the tub appears to have been tamed.