We The People … Or We The Courts?

There they go again. Once again a liberal court has injected a contentious social issue into the middle of a political campaign, and in so doing has, no doubt unintentionally, handed the Republicans a hot-button issue.

That injection (perhaps a transfusion for the Republicans) came from the

California Supreme Court, striking down two state laws that had limited marriages to unions between a man and a woman, [which] ruled on Thursday that same-sex couples have a constitutional right to marry.

Predictably, the decision

was denounced by religious and conservative groups that promised to support an initiative proposed for the November ballot that would amend the California Constitution to ban same-sex marriages and overturn the decision.

Consider the political waters now roiled. Democrats, while maintaining that they favor only civil unions, not same sex marriage, will support the decision. Gov. Schwarzenegger, John McCain’s most powerful supporter in California, says he will oppose any effort to overturn the decision by amending the state’s constitution through a state initiative. Sen. McCain supported such an amendment in Arizona, which failed.

Already the press is attempting to put McCain in the hot seat. Note the following treatment from the Associated Press:

John McCain, the GOP nominee-in-waiting whose position on the issue rankles the Republican Party’s conservative base, sought to strike a delicate balance to the Thursday ruling.

He “supports the right of the people of California to recognize marriage as a unique institution sanctioning the union between a man and a woman, just as he did in his home state of Arizona,” his campaign said in response. “John McCain doesn’t believe judges should be making these decisions.”

McCain rejected the will of the state’s high court even as he tried to maintain his long-held stance that the issue should be left to the states. He suggested that he backs an effort by California’s religious conservatives to put a constitutional amendment defining marriage as solely between a man and a woman on the November ballot.

The Arizona senator opposes same-sex marriage but, in a break with the GOP’s right flank, he also opposes a federal constitutional amendment banning same-sex unions on grounds that states traditionally have decided the issue. McCain did work to ban same-sex marriage in Arizona, campaigning for a ballot measure there in 2006. The measure failed.

The idea here, insofar as there is an idea, is that McCain is, at best, walking a tightrope (attempting “to strike a delicate balance”) and, more likely, simply a hypocrite for claiming to support state rights while opposing the decision of a state’s highest court.

But wait. We’ve heard this argument before, an argument that forces consideration of the surprisingly vexing question: just what is a state? And, just as important, who gets to make the final decision? Some of you may recall that this very question was involved in — some would say at the core of — the late unpleasantness over the Florida election returns in the 2000 elections.

I discussed this very argument here nearly four years ago, and I encourage you to read that entire post and its links. For those of you who refuse to follow that suggestion, I’ll quote some of it now. Before doing so, however, I need to call your attention to Article Two, Section One, Clause Two of the U.S. Constitution, which provides that “[e]ach State shall appoint [electors], in such Manner as the Legislature thereof may direct.”

In that earlier post I quoted law professor Rick Hasen’s summary of part of Bush v. Gore:

When the U.S. Supreme Court was considering the 2000 Florida controversy, supporters of Bush argued that the Florida Supreme Court, in extending the deadline for Al Gore to contest the election and later by ordering a recount, had violated Article II. The argument was that the court had usurped the legislature’s power.

In its first decision in the Florida controversy, the U.S. Supreme Court suggested that such an argument might be plausible, though it failed to decide the issue conclusively. In the second decision, Bush vs. Gore, three justices — Antonin Scalia, Clarence Thomas and Chief Justice William Rehnquist — embraced the view that the Florida Supreme Court’s actions violated Article II. Dissenting justices argued that the Florida court decision was simply an interpretation of the legislature’s existing rules.

Note well, as Prof. Hasen did, that the issue in 2000 turned on what the Florida Supreme Court’s defenders said was “simply an interpretation of the legislature’s existing rules.” As I wrote in my earlier post:

Ah, there’s the rub that frequently rubs conservatives the wrong way: “simply an interpretation.” The Florida Supreme Court “interpreted” the statutory requirement that election returns be reported within seven days to mean … not necessarily within seven days. Ditto with the amount of time required for contesting the results, several other matters.

This “interpretation” raises two significant issues — first, the latitude courts should have to rewrite statutes by “construing” them to mean something different from what they say, which I discussed at length in my earlier post. (Remember the New Jersey Supreme Court similarly saying that an election statute specifying that new candidates could be substituted on a ballot up to “51 days” before an election was only a “formal deadline” that didn’t really, really mean 51 days?)

More relevant, however, is the second question, which should be kept in mind during the charges that are sure to be leveled once again against conservatives for claiming to believe in states rights but who will seek to overturn the ruling of the California Supreme Court.

That question, not to put too fine or too exaggerated a point on it, is nothing less than, “What is a state?” As I’m sure you all recall, in the aftermath of Bush v. Gore conservatives on and off the Court were and are still accused of being hypocrites for claiming to be for federalism and states rights while supporting, for purely partisan reasons, the Supreme Court’s running roughshod (so the argument went) over a state’s highest court. That argument was and is fundamentally mistaken, however, because at bottom it rests on the assumption that in a fundamental sense a state is embodied in (and only in) its highest court.

In Bush v. Gore, the relevant fact was that Article Two, Section One, of the U.S. Constitution clearly placed the power to make election rules in the state legislature, whose “seven day” rule was hardly in need of “interpretation.” In what is sure to become the current controversy, some conservatives will encourage the people of California to amend their constitution in a manner that would reverse the California Supreme Court’s gay marriage ruling. There is no “tightrope” to be walked by John McCain or anyone else who claims to believe in federalism and states rights supporting the right of the people of a state to say what their fundamental rights are.

That is not to say that no tightropes, no tension, no “delicate balance” to be breached is possible on this issue among conservatives. There certainly is such a tension between conservatives who favor states rights on some policy issues but favor a national Constitutional amendment that would preclude states from approving of gay marriages.

But John McCain is not one of those conservatives. He has consistently opposed, on federalist principles, such a national Constitutional amendment.

Say What?