To Comfort The Afflicted
And Afflict The Comfortable

To Comfort The Afflicted And Afflict The Comfortable

Monday, October 19, 2020

New Observercast

Constitutional Questioning

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BY DANNY M. ADKISON

Two former legal combatants announced recently that they would be putting aside their differences and uniting for a greater cause. A cause that was delivered a major setback. On first glance, it would seem that the legal duo don’t have a chance. Or do they?

You may remember David Boies and Theodore Olson from the 2000 presidential election. The former was a lawyer for Al Gore and the latter was a lawyer for George W. Bush. Olson is probably better known, because having won the case determining the outcome of the 2000 presidential election, President Bush appointed him Solicitor General.

They have now teamed up to try to do something about Proposition 8 in California. That measure, approved by voters in 2008, banned gay marriages [modifying the state’s Constitution].

California’s Supreme Court last month gave its ruling in a constitutional challenge to the proposition. It ruled that the proposition was constitutional [relying solely on the Constitution of California].

The court sought to avoid the most controversial question raised by the case, namely, whether or not gay marriage is constitutional under California’s constitution. No doubt, many will interpret the court’s decision in this manner. But, the court, quite correctly, noted that the real legal issue in the case was not the constitutionality of gay marriage. Rather, it was whether or not the people of California had the authority to modify California’s Constitution in the manner that they did.

There is a big difference between these two questions. As reported, California’s Supreme Court merely ruled that Californians had properly modified the state’s Constitution and thus the state judges were legally bound now to support it. After all, once a provision is in a constitution, it is ipso facto constitutional, right?

Maybe not.

Northern abolitionists learned this the hard way during debate over proposing the Thirteenth Amendment to the U.S. Constitution. That amendment bans slavery. As such, it has the distinction of being not only the only amendment, but the only constitutional provision that applies to ordinary private citizens rather than the government.

It was because of this that southern supporters of the institution of slavery made the incredible argument that the amendment itself, even if proposed and ratified according to the method for amending the Constitution, would be unconstitutional. It would be unconstitutional because it would be taking their property and everyone knew that our government was founded on the fundamental rights of life, liberty, and property [which Jefferson had changed to pursuit of happiness].

Northerners sought to refute this argument on the grounds that once an amendment is ratified it becomes the Constitution and the Constitution can’t be unconstitutional. It sounded like an impenetrable logical argument. Until, that is, the southerners came back with this question: “What if we had the votes to propose and ratify an amendment requiring everyone to have a slave – would that be constitutional?”

Northern abolitionists were forced to admit that it wouldn’t, yet that also forced them, even if not in public debate, to privately admit that there must be some additional standard to judge the Constitution than the mere words of the Constitution itself.

Which brings us back to the recent California court ruling. The California Constitution does actually contain wording that could have been used to strike down Proposition 8. The state’s Constitution stipulates that revisions in fundamental principles need legislative approval. Critics of Proposition 8 asserted that it was a “revision” rather than a mere amendment. Who is correct?

Let’s apply the test used during the debate over the Thirteenth Amendment. Would the California court have ruled the same way if there were enough gays and supporters of gays to have an amendment approved in a statewide vote stipulating that only gays could be legally married?

You don’t have to be a constitutional expert to predict the correct answer to that question.

As far as the legal challenge by Boies and Olson, they started their case in federal court. That means that Proposition 8 will be judged by the U.S. Constitution rather than California’s. These two legal experts have read the cases, and in spite of the conservative nature of the current Supreme Court, we may all be surprised if that court gets a chance to decide the issue.

If you’re interested in why, read the 1996 Colorado case [Romer v. Evans] and then the 2003 sodomy case [Lawrence v. Texas]. Boies and Olson have read them and they have calculated the possibility of a vote outcome.

Their possibility for success should not be underestimated.

Dr. Danny M. Adkison teaches constitutional law at Oklahoma State University. His essays appear regularly in The Oklahoma Observer.

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Arnold Hamilton
Arnold Hamilton
Arnold Hamilton became editor of The Observer in September 2006. Previously, he served nearly two decades as the Dallas Morning News’ Oklahoma Bureau chief. He also covered government and politics for the San Jose Mercury News, the Dallas Times Herald, the Tulsa Tribune and the Oklahoma Journal.