In response to Eugene Volokh, I should say that I'm perhaps making a slightly different argument than the one he's addressing. My point about the vote in the legislature, as well as the support for same-sex marriage signaled by the governor urging the courts to resolve the issue and opposing a referendum to overturn it, is that claims of judicial usurpation of the prerogatives of the political branches are not in any way a useful description of this case, as a majority of legislators and the governor almost certainly agree with the court's ruling. As is often the case, the California Supreme Court's decision does not involve a zero-sum struggle for power, but rather is a case where the courts are resolving an issue because it cross-cuts existing party coalitions. This, in itself, doesn't mean that the court's decision was right; it's possible to disagree on the merits. In many cases, one can also argue that the courts should respond to evasion by the other branches by throwing the ball back, but in this case it's complicated by California's silly system allowing its constitution to be amended (and hence judicial decisions overridden) by a simple majority of the popular vote. I am, however, somewhat puzzled by his implication of disagreement with the proposition that "California Supreme Court's same-sex marriage decision actually consistent with the democratic process." In the American system, for better or worse, it's part of the democratic process for the judiciary to scrutinize the actions of the other branches as well as (in California's case) popular initiatives and pass judgment about their constitutionality. Strong-from federal review is a well-established part of this process, making California's effectively very weak-form review certainly consistent with it (as Volokh
somewhat concedes here
.) I can imagine, in the abstract, an argument that the courts should always defer to other branches or the people unless the text of the constitution is clear. But, in practice, virtually nobody in the American system believes this or acts like this in practice, so these claims generally amount to arguments that progressives should unilaterally disarm. I don't know if this is true of Volokh specifically, but certainly most of the critics of the California decision have no objection to cases where the courts use ambiguous constitutional materials to override electorally accountable officials to reach more congenial policy results (cf. Parents Involved, Garrett, Morrison) and are also strongly critical of the court in some case where it does defer in the face of ambiguity (cf. Kelo, Raich, Grutter.) The California court could, I suppose, be criticized for usurping the democratic process if its reading of the state constitution were simply unreasonable, but that's not the case. The majority's reading is not commanded by the constitution, but it's certainly defensible. And if we're going to have judicial review, protecting unpopular minorities from being arbitrarily excluded from fundamental privileges strikes me as being at the type of case where judicial intervention is most defensible. But even if one disagrees, I fail to see how the court's holding is in any way inconsistent with democracy as it is actually practiced in this country. --Scott Lemieux
