What Does Proposition 8 Have To Do With Zero Waste?

By John Moore, Henn, Etzel and Moore
A semi-monthly feature, exclusive to NCRA News, from NCRA general counsel and board member John Moore, concerning recent legal decisions relating in some manner to Zero Waste.

By John Moore, NCRA Attorney, Henn, Etzel & Moore
Last month the Supreme Court issued 2 decisions which, in tandem, confirm that it is unconstitutional to discriminate against same sex marriage. Regardless of one’s personal opinion about the outcome, it remains clear that the Court again exercised “result oriented jurisprudence”, like it did in the infamous Bush v. Gore case. This article is a cautionary tale in which I summarize several prominent Supreme Court cases where the result was more the focus than the reason – because one always can rationalize their own decision. In the wrong case and in the wrong hands, zero waste principles could be put at risk.

Imagine a future when the voters of a state decide, by initiative, to enact a law banning all landfill discards. Next, say there was a legal challenge to the law in federal court by the wasters and the government of the state adopting the law declined to defend it on constitutional grounds. Could zero waste advocates step in to defend the law? Under the Prop 8 case holding (Hollingsworth v. Perry), the zero wasters would lack standing to defend the case. Under the companion court case finding DOMA to be unconstitutional (United States v. Windsor), standing would exist for third party defenders according to the 5 member majority of the Court. Which is it?

The Prop 8 and DOMA cases came to the Court in almost identical posture: A law was passed. Someone claimed harm due to the passing of the law and sued in federal court on federal constitutional grounds. Then, in each case, the government enacting the law conceded it was unconstitutional and declined to defend it in court, while, at the same time, enforcing it while the case was pending. Because of this lack of vigorous defense in each case, a group proponent of the law was allowed to intervene and defend the law. In the Prop 8 case, the plaintiffs sought to declare Prop 8 unconstitutional under both the 14th Amendment of the US Constitution and a provision of the state constitution. In the DOMA case, the long-time same sex partner of a decedent challenged the IRS’ refusal to grant the survivor marital status for purposes of applying an exemption to federal estate tax. The survivor paid the tax and then brought action in federal court for a refund. In each of the two cases the legal defense was carried on by intervening parties, not the government entity sued.

In the Prop 8 case, the intervenor group was found not to have standing on any of the appeals from the trial court decision, meaning that neither the Supreme Court nor the Ninth Circuit Court of Appeals had jurisdiction over the case and could not rule on the merits. The result was that U.S. District Court Judge Vaughan Walker’s decision that Prop 8 was unconstitutional, made at the time when the state government was a party to the case, was left standing. In the DOMA case, the Court found the necessary standing in the intevenor-defendants. Since none of the justices explained why there was standing in one case but not the other, we don’t know the precise dividing line.

Many well-known cases had a “result first” flavor, starting in 1803 with Marbury v. Madison. In Marbury, a federal judge was appointed and all the legal requirements of the day to accomplish the appointment were met. The appointment came in the waning hours of the term of Federalist President John Adams. Soon after newly elected President Thomas Jefferson took over, he cancelled the appointment. While the law was clearly followed for the appointment, the Supreme Court, lead by Chief Justice John Marshall, did not overturn Jefferson’s cancellation. In his roundabout, hard-to-follow decision, Chief Justice Marshall for the Court decided it was a political issue and the Court must defer to the executive branch. Like the later Bush v. Gore case (which cites Marbury), Marbury was decided in time of crisis- there the still-emerging nation’s struggle to decide if it was a federal republic or a confederation of states.

Roe v. Wade? Roe was decided in 1973 based on precedent from a 1965 case, Griswold v. Connecticut. In Griswold, the state of Connecticut passed a law forbidding the sale of contraceptives, including to married couples. The state’s stated rationale for passing the law was a policy against “all forms of promiscuous or illicit sexual relationships.” The Court majority found the Connecticut law unconstitutional under the 14th Amendment. The 14th Amendment states that no state “shall deprive any person of life, liberty, or the pursuit of happiness without due process of law.”

The 14th Amendment was passed after the Civil War and no doubt was passed to grant full rights to former slaves and to correct the abomination that the original Constitution suborned slavery. Nothing in the history of the passage of the 14th Amendment suggests either that contraception was a concern or that the concept of “liberty” had no boundary. Yet the Court majority in Griswold found a “penumbra” (i.e. umbrella) of rights and “zones of privacy” that emanate from the concept of “liberty” and that contraception was one of them. Most telling is the majority’s statement that “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marital relationship.” Agree with that statement or not, but the reason for the decision seems more gut level than constitutionally based.

The “liberty” provision of the 14th Amendment was given quite a different spin by the 1905 Court in the decision infamous to labor unions, Lochner v. New York. New York passed a law prohibiting bakery workers from working more than 10 hours in a day or 60 hours in the week. An employer, Lochner, was criminally convicted for violating this law. The Court, in a famously pro-business era, held the law unconstitutional under the same 14th Amendment because it interfered with the “liberty” of a private employer contracting for employment with a private party in whatever manner they chose. Except as it pertained to former slaves, the 14th Amendment had nothing to do with employment relations. Was the 14th Amendment the reason for the result or was it, as the Court concluded, “Under such circumstances the freedom of master and employee to contract with each other in relations to their employment, and, in defining the same, cannot be prohibited or interfered with, without violating the Federal Constitution.”

The 1st Amendment could not be more clear, “Congress shall make no law… abridging the freedom of speech or of the press.” Yet in 1919, the Court, through Justice Oliver Wendell Holmes, “thought it fit to add a few words” to it. The Court decided 3 related cases, all alleged violations of a federal Espionage Act, passed during World War I. 3 different people made public speeches and were convicted of violating that Act. One of these three was Communist party presidential candidate Eugene Debs. Debs was accused of inciting “insubordination, disloyalty, mutiny and refusal of duty in the military and naval forces of the United States” by a public speech that promoted socialism and supported draft dodgers. So, the Court, disliking criticism of the war effort “added a few words” to the 1st Amendment to the effect: that speech can be prohibited if there is a “clear and present danger” of bringing about the “substantive evils that Congress has a right to prevent.” Later courts would disregard these “additional words” except in cases like shouting “fire” in a crowded theater.

The 2nd Amendment is arguably less clear than the First. It says, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

In 2010 a 5-4 majority of the Court in District of Columbia v. Heller held that a DC ban on owning handguns, including in the home for self-defense, violated the 2nd Amendment. The opinion is scholarly in a sense that a lot of history is reviewed for context and the opposition arguments are countered. Lip service is paid to the notion that gun violence is troubling in today’s society and that the scope of the 2nd Amendment is not fully clear. But early on, Justice Alito prefaces his arguments by rephrasing the text and adding the word “Because” to the beginning of the sentence and then continuing it grammatically to mean “Because a well regulated Militia is necessary to the security of a free State,. the right of the people to keep and bear Arms shall not be infringed.”

Most recently the Court, in another 5-4 decision (with the votes following the same line as the handgun case), found a key provision of the Voting Rights Act unconstitutional because it violated the 10th Amendment’s reservation of rights to the states to govern themselves.

Part of the Voting Rights Act forbade certain southern states from changing their election laws unless they were pre-cleared to do so by the federal government. These states had long histories of asserting stubbornly that they were not obliged to follow anti-discrimination laws, citing the Tenth Amendment. While federal clearance of a state legal action certainly is “extraordinary”, the level that states were enacting Jim Crow laws to limit and intimidate minority voters mandated extraordinary measures which Congress was empowered to do by the 15th Amendment (likewise a post-Civil War amendment) Chief Justice Roberts, writing for the majority, reviewed the long history of discrimination and the legal efforts to combat “Jim Crow” laws. While couched in constitutionally scholarly language, the essence of the ruling is “times have changed and we don’t need oversight on these states any longer”. The opinion reveals the underlying sentiment. The Court describes the pre-clearance requirement as. “States must beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own… And despite the tradition of equal sovereignty, the Act applies to only nine States (and several additional counties).”

Actions speak louder than words; in the aftermath of this case, many of the states required to pre-clear began moving forward, some within hours after the Court decision, with restrictive voting legislation such as ID requirements.

In Bush v. Gore, the constitutional question presented was whether a decision of the Florida Supreme Court ordering a recount in the presidential election violated the presidential voting requirements of Article II, Section 1. But having stated that was the issue being decided, the opinion did not again cite that provision of the Constitution. In the end the Court reversed the decision of the Florida Supreme Court, but by then it was too late for that Court to do anything further under its own laws. That perhaps the Court was ducking the central political question is reflected by its statement, “ None are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand more in admiration of the Constitution’s design to leave the selection of the President to the people, through their legislatures, and to the political sphere. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.”

So Proposition 8 potentially has a lot to do with zero waste should zero waste advocacy lead to ballot box means to accomplish its goal with many well-funded opponents poised for a legal fight to the end. Of course there is no direct control by voters over the Supreme Court, the Constitution was designed that way. But the cases cited certainly illustrate how important is the selection process for Supreme Court justices. And if you rely upon that Court to redress what you consider to be a wrong that no other branch of government will grant, be careful what you wish for and watch out for Proposition 8.