William N. Eskridge Jr.

The California Proposition 8 Case: What is a Constitution For

Professor Philip Frickey is an exemplar of the American Midwest, but his academic career has also flourished in California. This state has recently been the situs of the most interesting constitutional litigation sequence in the new millennium, starting with the California Supreme Court’s 2008 decision invalidating the state’s barring of same-sex marriages and culminating in the court’s 2009 decision upholding Proposition 8 (which had amended the state constitution to override the 2008 decision). These landmark decisions, discussed in Part I of this Essay, are not just about same-sex marriage. The Marriage Case and, even more, the Proposition 8 Case pose this question: What is a constitution for?

Part II discusses several different theories of constitutionalism, each reflected in the briefs filed by the primary advocates in the Proposition 8 Case. The supporters of traditional marriage, in their brief, relied on a descriptive constitutionalism that owes much to Aristotle, updated by American theories of popular sovereignty. The state took a different route, invoking a rights-based constitutionalism that can be traced back to John Locke. Finally, the supporters of same-sex marriage relied on the representation-reinforcement variation on rights-based theory developed by Dean Ely. Is the constitution best understood as a description of the life and soul of the polity? A statement of inalienable rights upon which the social contract is grounded? A guarantee of the democratic process?

A major theme of Professor Frickey’s work, explored in Part III, has been practical reasoning—a pragmatic approach to constitutionalism inspired by Jeremy Bentham and William James. On explosive issues such as gay marriage, the pragmatic judge is interested in the future costs and benefits of proposed regime changes, is willing to experiment in order to create more useful information, is reluctant to close off public debate about a contentious issue, and is ultimately deferential to social norms and popular attitudes. Professor Frickey has translated this philosophy into useful doctrine that diplomatically mediates the borderline between the stable, slow-to-change polity of Aristotle and the dynamic aspirations of Locke and Ely. A Frickeyan analysis would support the California Supreme Court’s three important moves: (1) the Marriage Case usefully enforced Lockean rights under constitutional conditions where popular response was possible, (2) the Proposition 8 Case deferred to the popular reaffirmation of the Aristotelian status quo, but, (3) at the same time, gave it an Elysian nudge by construing Proposition 8 not to invalidate the several thousand same-sex marriages entered between June 16 and November 8, 2008.