Never On Sunday

Proposition 8 sought to deny a fundamental right (marriage—repeatedly recognized as a fundamental right by the Supreme Court) to an oppressed minority by popular ballot. It succeeded, thanks to a well-funded and well-organized but misguided and often downright dishonest campaign by conservatives to “protect marriage” from the eeeevil, confusing influence of homosexuality. Judge Walker struck down the initiative as unconstitutional, although he granted first a longer stay, then reduced it to a shorter one, against actually processing gay marriages to allow time for challenges to his ruling.

Private appeals followed, but there is considerable question whether those private interests have standing to appeal. Governor Schwarzenegger (R) and Attorney General Brown (D) both have unquestioned standing to appeal on behalf of the State of California, but both have declined to do so. (Indeed, they encouraged Judge Walker to lift the stay, so that California could get down to the business of issuing licenses.) As one might expect, their refusal to appeal has sparked outrage among the arch-conservatives who pushed Prop 8 in the first place. They treat a refusal to appeal as a dereliction of duty and, on Schwarzenegger’s part, a betrayal of his conservative constituency. Both officials, the right wing argues, are duty bound to defend the “democratic mandate” and “will of the people,” regardless of the practical likelihood that an appeal would simply be a waste of time and resources, and regardless of the legal and moral question of whether popular sentiment should ever take precedence over a fundamental right.

Naturally enough, liberals applaud Schwarzenegger’s and Brown’s refusal to appeal. I recently read a challenge as to whether liberals would feel the same were the shoe on the other foot: what if a popular initiative to legalize marijuana passed, were struck down in court, and conservative officials declined to appeal?

Respectfully, I suggest the parallel isn’t. Legalizing marijuana doesn’t deny anyone’s fundamental rights; outlawing marriage for a minority does. And refusing to appeal a decision that marijuana could not be legalized would indeed be undemocratic. (For the record, I have no strong opinions on legalizing marijuana. The arguments for legalization strike me as somewhat more persuasive, but some few arguments against have merit. With no desire to toke up, I don’t have a dog in the fight.)

Perhaps a closer mirror image could be found in a hypothetical public initiative to outlaw the display of the crucifix on private property, in violation of the 1st Amendment. Imagine radicals pushing through a well-funded and well-organized but misguided and often downright dishonest campaign to “protect religious freedom” from the eeeevil, confusing influence of Catholic symbols. Imagine then, a judge striking down that ballot initiative and a conservative governor or attorney general refusing to appeal the ruling. Would liberals get their undies in a twist in the same fashion that conservatives are upset with Schwarzenegger and Brown?

Some, no doubt. Manichean liberals can be found, though they are rarer than Manichean conservatives. But I wouldn’t object in this scenario, and I don’t think most liberals would. No, not even if the hypothetical governor and attorney general’s real reason for refusing to appeal had nothing to do with respect for the courts or political expediency, and reflected only personal, pro-Catholic sentiment. I would refuse to appeal in those circumstances, and I don’t have any love for Catholicism. I just think that fundamental rights trump popular ballots any day, all day, every day. And I think the overwhelming majority of liberals agree.