Former Vermont Supreme Court Chief Justice Jeff Amestoy: Winning By Losing On Prop. 8

03/20/09 Washington Post:

Former Chief Justice Jefff Amestoy wrote the majority opinion in Baker v. State of Vermont, 744 A.2d 865 (Vt. 1999), the ruling that required Vermont to honor its constitutional guarantee of equal protection to same-sex couples. In this opinion article, he says that progressives should welcome a ruling by the California Supreme Court to uphold Prop. 8. Popular participation in state constitutional interpretation preserves an important outlet for progressive reform, even though

"the most pronounced demonstration of popular constitutionalism in recent years has been the adverse response of voters to judicial decisions advancing the constitutional claims of same-sex couples. The idea that judicial authority is not ultimate constitutional authority can be particularly unsettling when citizens choose to amend their state constitutions to limit rather than expand rights."

Vermont University Law Professor Peter Teachout recently praised the key role of democratic participation in Vermont's constitutional process, when he testified to the state Senate Judiciary Committee on S.115, the Vermont Act to Protect Religious Freedom and Promote Equality in Civil Marriage. Teachout said that the Baker Court acknowledged the very point that Amestoy now makes in this article - that in matters of state constitutional interpretation, "a judicial decision may be the opening argument in a process that preserves the ultimate constitutional authority of the people."

Teachout was careful to characterize this approach to state constitutional interpretation as Vermont's "special approach." Popular constitutionalism in Vermont has limitations, under Ch.2, Art. 78. Among other limitations, Vermont voters can not change their state constitution through initiative amendment, as Calfornia voters can change theirs. Is Amestoy right that popular constitutionalism has more general application?

That depends on the ease with which citizens can change their state constitution, especially with respect to fundamental rights. During oral arguments on Prop. 8, Chief Justice Ronald George pointed out that California's constitution has been changed more than 500 times, implying that, as a political question, it may be too easy to change. Consider how one version of popular constitutionalism works - or fails to work - in California:

"It is another oddity of California law that sweeping constitutional change [including the scope of equal protection and fundamental rights] can be accomplished with nothing more than a simple majority vote at the ballot. Proposition 8, for example, the constitutional amendment that banned gay marriage in the state, passed with just 52% of the vote ... A constitutional amendment -- even one that changes the most sacred ideas in the text -- can be put on the ballot by gathering signatures equal to 8% of the voters in the last gubernatorial primary. Then, if a simple majority votes for it, it's in. That's what opponents of Proposition 8 were complaining about last month to the California Supreme Court. " ("Supermajority rule: good or bad?" 03/22/09 LA Times)