Law Blog

“Let them march all they want, as long as they continue to pay their taxes.”

-Alexander Haig

Recently, California voters narrowly passed Proposition 8, which effectively bans same-sex marriage in the state.  One reaction to the news is anger-and protest.  Musician Melissa Etheridge gained national attention for her blog in which she vows to stop paying taxes until she’s afforded the same rights as heterosexual citizens.  It seems that sizeable numbers of the LGBT community are planning to follow Etheridge’s lead, which leads me to wonder what consequences they will face. . . .

According to an official IRS report, filing tax returns in not voluntary and citizens do not have the right to withhold tax payments based on moral objection. The IRS cites a large body of case law supporting its position, and effectively knocks down the argument that citizens can refuse to pay income taxes based on moral grounds under the First Amendment, which states:  ”Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”  The IRS vigorously asserts that the First Amendment does not grant citizens the right to refuse to pay income taxes based on religious or moral grounds, or because taxes are used to fund government programs that they oppose. 

OK, so the IRS seems pretty sure about its position-but how strictly does it enforce rules against conscientious tax objectors?  What’s actually happened to people who’ve refused to pay taxes based on moral considerations?  According to some members of the National War Tax Resistance Coordinating Committee, conscientious objectors to the war have faced unpredictable consequences.  While criminal prosecution is possible, this is pretty rare.  To be exact, since the 1940s, fewer than 30 people have been jailed for refusing to pay war taxes. 

The IRS is more likely to collect taxes through civil means.  Usually, the IRS sends notices to objectors’ homes and assesses penalties in an effort to intimidate them before it finally takes action-sometimes years later.  Final action may consist of garnishing wages, seizing bank accounts, or even seizing cars and houses.  Of course, some non-filers go unnoticed. . . .

While the tax contributions of Etheridge and other well-to-do citizens would surely be missed by the government, most people simply don’t have as much financial clout.  Further, only about 59% of all Americans pay federal income taxes at all.  Finally, the fines and interest the IRS assesses on protestors might leave the government with more money than if protestors had paid their taxes in the first place. 

It’s unclear if refusing to pay taxes will prompt the government to reconsider its position.  What is clear is that it will take a large and organized effort by the LGBT community to make a significant impact on government through tax resistance.

In California, some consider the fight to legalize same-sex marriage as an effort by a small minority to circumvent the will of the majority. Supporters of recently enacted Proposition 8-a constitutional amendment eliminating same-sex marriage in California-hailed the initiative as immune from challenge. The amendment was designed to be invincible from attack by the courts, which have overturned previous voter initiatives banning same-sex marriages in California and Connecticut. Opponents attacked these rulings as going behind the people’s back and forcing a small minority’s agenda on society. Now, they insist, the people’s will has finally triumphed.

Not so fast. A case filed by the ACLU in the California Supreme Court on November 5^th, 2008 charges that the Proposition itself is an unconstitutional attempt by the voters of California to revise the constitution, not amend it.

According to Article 18 of the California Constitution, amendments to the Constitution can be made by popular vote. Revisions, however, require legislative action. A revision, according to the California Supreme Court, is a change to the fundamental underlying principles of the Constitution itself. An amendment is merely an addition or change within the lines of the original instrument, or any change designed to better carry out the fundamental principles of the Constitution.

The California Supreme Court has frequently stated that equal protection is a fundamental principle of the California Constitution. Court documents filed for the petitioners argue that because Prop 8 eliminates the right of same-sex couples to marry, Proposition 8 is revising the Constitution by mandating government discrimination of a suspect class, contrary to the Constitution’s underlying principles of equal protection. (Same-sex couples were designated a suspect class with the fundamental right to marry in the In re Marriage cases of early 2008.) The Proposition also fundamentally alters the role of the courts by stripping them of their ability to protect the fundamental rights of a minority against the tyranny of the majority, a basic principle of our Republic’s system of checks and balances.

It makes sense initially to balk at the Supreme Court stepping in and twice overturning laws enacted by the people in democratic elections. However, what is being lost in articles and commentaries on this important case is a discussion of the true nature of government, and the definition of “will of the people.”

The government cannot enforce the will of the majority when it lacks the authority to do so. To accomplish the extraordinary feat of enforcing government discrimination and circumventing the underlying principles of our Constitution, a simple majority vote cannot suffice. The will of the people was permanently embodied in the California Constitution when it was ratified. Their will was ensuring equality for all and the protection of human dignity and liberty, and this voice should always speak louder than a simple majority vote. Hopefully that will was not changed by Proposition 8.

In May, 2008, the California Supreme Court held that same-sex couples have a right to marry in California.  Since that time, thousands of same-sex couples have married in the state.  Yet, now that Proposition 8 — which eliminates the right of same-sex couples to marry in California — passed in early November, what happens to those same-sex couples who have married since May, 2008? 

So far, the Court has declined to comment on whether Prop 8 would be retroactive, stating that “pre-election construction by courts in disfavored and there is enough uncertainty about the measure’s meaning that proponents and opponents are free to argue what they think it will mean.” 

Others are more outspoken.  According to Joan Hollinger, a professor at U.C. Berkeley’s Boalt Hall School of Law, “The amendment cannot be effective retroactively, so anyone married before November would be protected.”  California Attorney General Jerry Brown echoes this sentiment, declaring:  “I would think the court, in looking at the underlying equities, would most probably conclude that upholding the marriages performed in that interval (before the election) would be a just result.” 

However, not everyone agrees on the issue of retroactivity.  Brad Dacus of the Pacific Justice Institute, for one, asserts “It is clearly far too early . . . for the attorney general or for anyone to be pronouncing how the courts will be interpreting the amendment.” 

I agree with those who think that Prop 8 would not be retroactively applied.  First, most legislation is effective from the date of passage.  Second, the U.S. Constitution’s ex-post facto laws and protections against government interference with private contract pose obstacles. 

However, not applying Prop 8 retroactively would cause new problems too.  For instance, how would the law accommodate the small class of same-sex couples who have married between May and November?  It seems unlikely that those couples would be afforded exactly the same rights as married opposite-sex couples if the California Constitution explicitly forbids same-sex marriage; yet, domestic partnership law would not be adequate.

This November, California voters will be asked to vote on Proposition 8, which if passed would amend the state constitution to explicitly prohibit same-sex marriage. Um, wasn’t this issue already decided? Well . . . In 2000, California voters passed Prop 22, which rewrote the state’s Family Code to formally define marriage as between a man and a woman. But in May, 2008, the California Supreme Court struck down Prop 22 and other statutes limiting marriage to unions between a man and a woman, as violations of the state Constitution’s equal protection clause. The court further held that the California Constitution affords same-sex couples the right to marry. So, can voters really overturn the state’s highest court’s landmark decision with Prop 8?The ability of voters to remove a fundamental constitutional right – the right to marry – by initiative amendment has been questioned. On June 20, Equality California petitioned the California Supreme Court to remove Prop 8 from the ballot, arguing that

Prop 8 is a constitutional revision, rather than a mere amendment, and thus it requires approval from both the voters and the legislature. However, the court denied the petition with no comment, and the issue of whether Prop 8 is a constitutional amendment or a constitutional revision remains up in the air.

Is Prop 8 a “waste of time,” as Governor Schwarzenegger has stated? Even if Prop 8 passes, wouldn’t the court just find a ban on same-sex marriage unconstitutional again? Probably, but maybe Prop 8 supporters are hoping that if propositions banning same-sex marriage are passed by voters repeatedly, the court might eventually find a way to interpret bars on same-sex marriage as constitutional.

Why would the court do this? First, when the court overrules an express mandate by the people, it risks violating long-standing principles of judicial deference to legislative enactments. Second, if the court ignores statutory authority, its decision can be rendered ineffective by further legislation, especially because many authorities believe that regulation of marriage and divorce is up to the Legislature, except as it may be restricted by the Constitution.Although I personally support the right of same-sex couples to marry, I think it’s great that the court is not immune from voters’ opinions. The Framers of the U.S. Constitution intended for the balance of power to be split in order to help prevent corruption: the push and pull between Prop 8 supporters and the California Supreme Court is a perfect example of their vision in practice.