California is going to be governed from the courtroom. November’s most controversial ballot measure, Proposition 8 on gay marriage, is court-bound. And, the legislature’s Democrats have offered up a complex approach to raise revenue in an attempt to sidestep the state’s standard operating procedure. If this maneuver gets the governor’s signature, the courts will be rendering a verdict on this as well.
Of course, it’s not uncommon for courts to decide the fate of laws. But in both the Prop 8 and tax law cases it appears judges will be going beyond the role of umpire in precedent setting ways.
In the Proposition 8 case, Attorney General Jerry Brown has taken the unusual position of declaring he will not defend the law passed by the voters, but argues that Proposition 8 is in conflict with “inalienable rights” which cannot be altered by an initiative constitutional amendment.
This argument will bring the judges into the long debated issue of natural rights versus legal rights. Natural rights are not based on laws, customs or political beliefs. Thomas Jefferson, in the Declaration of Independence, asserted that a people coming together to govern themselves may do so under the “Laws of Nature and of Nature’s God.” These natural laws cannot be set aside by civic action.
However, some scholars argue that codified laws convey legal rights and these laws may be altered by prescribed methods.
The question before the court in Brown’s reasoning is can Proposition 8 be thrown out because it violates natural rights (inalienable rights). This approach is quite different than the challenge that Proposition 8 is revising rather than amending the constitution, something an initiative measure cannot do.
Deference to the voters’ decision must be paramount or the foundation of our democracy will crumble. However, it is also important that a majority not quash a minority’s basic rights. The courts will try to navigate this legal thicket if they follow the path lighted by Brown.
In the past, California courts have made a distinction between taxes and fees. But, these same courts have been reluctant in asserting themselves into governing disputes between the legislature and the governor. How the courts approach the end run maneuvers concocted by the legislature last week to raise revenue will be telling.
If the courts abandon former definitions and allow the legislature to pass so-called fees with majority votes, revenue raising in this state will be altered dramatically. And, this will be the first domino to fall. Reaction to such a decree will undoubtedly bring on a furious response from Republicans and taxpayer groups. Referendums on current fees and initiatives establishing a two-thirds vote for future fees will make their way to the ballot.
Voters have historically taken a different view than the majority in the legislature on making it easier to raise revenue. Ironically, in the end, a court’s ruling to allow majority vote revenue increases could lead to stricter laws established by voters on the ability to raise revenue.
All these considerations fall to the California courts, which are not immune to politics. Judges have to face voters whether through retention votes, elections or even the possibility of recalls. In this way, some judges may feel like legislators who weigh their decisions with an eye toward the electorate.
Judges were never meant to rule and it is not the fault of the jurists that this burden falls upon them. That fault lies with the legislators and governor for not getting the job done.
The judges have become the legislators of last resort.