By any measure, the California Supreme Court’s decision in In re Marriage Cases is the most significant in the last year and in recent memory. Chief Justice George’s opinion thoroughly and forcefully explains why gay and lesbian individuals have the right to marry under the California Constitution. This conclusion is founded on basic principles of California constitutional law: the right to marry is a fundamental right, and discrimination on the basis of sexual orientation is inherently suspect.
Chief Justice George’s opinion is striking in how thoroughly and carefully it explains the constitutional basis for marriage equality. Yet its reasoning and rhetoric played virtually no role in the public debate over Proposition 8. If it had been far shorter and much more poorly reasoned and written, the outcome would surely have been the same on election day.
The interesting and unexplored question is whether the opinion could have done anything to sway public opinion or to change Proposition 8’s fate. But is this even a fair question to ask? Should judicial opinions seek to persuade the public? To answer that question requires thinking about whom judges actually intend to address and whom they should address.
Related Articles:
Chief Justice Ronald M. George, Achieving Impartiality in State Courts
William M. Eskridge, The Marriage Cases-Reversing the Burden of Inertia in a Pluralist Constitutional Democracy
This review essay considers the state of hybrid democracy in California through an examination of three worthy books: Daniel Weintraub, Party of One: Arnold Schwarzenegger and the Rise of the Independent Voter; Center for Governmental Studies, Democracy by Initiative: Shaping California's Fourth Branch of Government (Second Edition), and Mark Baldassare and Cheryl Katz, The Coming of Age of Direct Democracy: California's Recall and Beyond. The essay concludes that despite the hoopla about Governor Schwarzenegger as a "party of one" and a new age of "hybrid democracy" in California, the pattern in the 2000s appears mostly the same as that of past decades: California voters have occasionally passed important measures through the initiative process, but for the most part public policy in the state continues to be crafted by the state legislature and the governor. The best hope for increased "people power" through the initiative process is for initiative proponents to focus on good government measures that assure a better legislative process, such as open primaries, redistricting reform, and budget reform.
