Carrie Severino: The 9th Circuit's Attack on Self-Government


Carrie Severino, Chief Counsel and Policy Director of the Judicial Crisis Network, writes in NRO's Bench Memos:

... This ruling [by the 9th Circuit] effectively says that any attempt by the people of California to check their state courts’ liberal activism violates the United States Constitution. That proposition is not only legally laughable but is constitutionally backwards and may be the most serious attack on self government since the era of poll taxes and literacy tests. They have not only disenfranchised those who are poor or Black, they have effectively disenfranchised an entire state’s citizenry.

Here’s how the one-way ratchet works in today’s opinion. Once a state has changed its law to allow same-sex marriage, then changing the law back becomes a “distinct constitutional violation” by “strip[ping] same-sex couples of the right to have their committed relationship recognized by the State with the designation of ‘marriage,’ which the state constitution had previously guaranteed them.” For the Ninth Circuit it didn’t matter whether same-sex marriage was the law in California for an hour, a day, or a year. It didn’t matter whether it was legalized via judicial fiat rather than legislatively or by a referendum of the people. It didn’t matter that the California Supreme Court acknowledged that the right itself was novel. Once there, it never can be eliminated. Not by the California Supreme Court reconsidering its own discovery of the right. Certainly not by the California legislature. And now not even by the people amending their own state constitution.

... In the bizarro world of the Ninth Circuit, marriage is at once nothing and everything. The unelected California Supreme Court can singlehandedly invent new constitutional rights, but the people cannot use the proper amendment procedures to amend that same constitution to restore its original meaning.