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As SCOTUS Weighs Gay Marriage, Should People v. Legislature Matter?

With the Supreme Court set to consider same-sex marriage petitions from five states at its first conference on September 29, one argument lurks in the background.

Utah, Wisconsin, Oklahoma, and Virginia passed their same-sex marriage amendments through statewide referenda. "Millions of voters" would be "disenfranchised," Utah argued, if the Court didn't take the case. Similarly, Wisconsin said the Seventh Circuit's opinion "ignored Wisconsin voters' right to 'exercise[] their privilege to enact laws as a basic exercise of their democratic power.'"

Implicit in this concern for popular sovereignty must be a suggestion that, when the people themselves make law, that law is somehow more important than when the legislature does it (and, as a corollary, it's more important because it's achieved via the mechanism of voting). Consequently, the Court must take the great weight of popular opinion into account.

Popular Sovereignty

Why attach so much importance to how the law was passed? For one, it introduces a new complication that the Court must consider: Voting is a fundamental right, and even conceding that same-sex marriage might be a fundamental right, it's more advantageous for the five states at issue to frame the question as one of competing fundamental rights.

In the end, though, that's a distinction without a difference. If the Supreme Court gave greater deference to a legislative act because the people themselves did it, instead of the people through their lawmakers, it would allow "the people" to inflict constitutional damage on whomever they choose simply because, when the people themselves engage in direct democracy, it's somehow more insulated from review -- even if the end result is exactly the same as if the legislature had inflicted the damage.

A Law by Any Other Name Is Just as Unconstitutional

The Ninth Circuit, in Perry v. Brown -- the California Proposition 8 case -- brushed the problem aside in one sentence. California amended its constitution through the initiative process to prohibit same-sex marriage, but the Ninth Circuit said it didn't matter who passed the law: "The People may not employ the initiative power to single out a disfavored group for unequal treatment and strip them, without legitimate justification, of a right as important as the right to marry."

Supreme Court jurisprudence on this topic is pretty clear. In 1981, Chief Justice Burger wrote in Citizens Against Rent Control v. City of Berkeley, "It is irrelevant that the voters rather than a legislative body enacted [the city's election contribution limit], because the voters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation."

Even though the case dealt with the First Amendment, those rights are certainly as "fundamental" as the right to marriage at issue in the same-sex marriage cases. Ultimately, it seems that emphasizing the number of voters who wanted an unconstitutional outcome is more a rhetorical strategy than a legal one.

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