By Kenneth S. Broun
Twenty-two years ago, on the 11th of February 1990, Nelson Mandela walked out of a South African prison, a free man for the first time in twenty-seven years. He immediately assumed the leadership role that would move South Africa from a system of apartheid to a struggling but viable democracy. No one person, not even Nelson Mandela, was solely responsible for this miracle. But no one can doubt the crucial role that he played in the process that brought a new era to South Africa, or that his intellect, sturdy leadership, and political savvy made this process far more peaceful than anyone had predicted would be the case.
That Mandela was alive to assume this leadership is a remarkable story. When the trial that led to his conviction began in 1963, most in South Africa and abroad predicted that he and his codefendants would be hanged. Mandela and his codefendants faced charges brought under the recently enacted Sabotage Act, the violation of which carried the death penalty. The South African government proudly announced that it had brought to justice men who had planned and begun to carry out a campaign for its violent overthrow. The country’s press celebrated the success of the police in catching the violent criminals who represented a very real threat to the way of life of white South Africa. Foreign representatives were told by informed sources that the maximum sentence for the top leadership was possible, indeed likely.
The 1963–64 trial of Mandela and his co-defendants is known as the Rivonia trial, named for the Johannesburg suburb in which most of the defendants were arrested. Other defendants included ANC leaders Walter Sisulu, Govan Mbeki, the father of future South African president Thabo Mbeki, and the South African Indian leader, Ahmed Kathrada.
A team composed of lawyers of great intellect, legal ability and integrity defended the accused. They applied their considerable skill to a cause in which they deeply believed. The accused, through both their statements to the court and their testimony, demonstrated strength of character and devotion to a cause that even a hostile judge could not, in the end, ignore. The conduct of the judge before whom the case was tried illustrates both the strength and weaknesses of the South African judicial system. The judge may well have been independent of the government and its prosecutor, but his own prejudices guided him through much of the proceedings. The prosecutor, who was described by a visiting British barrister as a “nasty piece of work” may have hurt, rather than helped his case by engaging in a political dialogue with the defendants who took the witness stand.
White South African opinion was clearly in favor of the prosecution and harsh sentences for the accused. But international opinion was almost unanimous in its support for them, particularly in the newly independent African states and the Communist bloc. There was also considerable attention to the trial on the part of the major Western powers, or at least concern that death sentences would sour relations with African and other Third World people. The question was how the West, and in particular the United States and United Kingdom, might attempt to influence the trial’s outcome.
Perhaps the key point in the trial was Nelson Mandela’s statement from the dock, a statement made in lieu of testimony. He ended the statement with these words:
During my lifetime I have dedicated myself to the struggle of the African People. I have fought against white domination, and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to li
William N. Eskridge, Jr. and Darren R. Spedale are the authors of Gay Marriage: For Better or For Worse? What We’ve Learned from the Evidence. Eskridge is the John A. Garver Professor of Jurisprudence at the Yale Law School. Spedale spent two years on a Fulbright Fellowship in Denmark researching Scandinavian same-sex partnerships. He received his J.D. and M.B.A. degrees from Stanford University, and continues his work on same-sex marriage through his pro bono activities. Here, they comment on the recent decision by the California Supreme Court to uphold Prop 8.
The California Supreme Court’s decision upholding Proposition 8 will be analyzed as a referendum on gay marriage. That would be a mistake. There are much higher stakes in the case. At bottom, it posed the question, What is a Constitution for? The Justices did not address that issue explicitly, but their action spoke volumes.
Prop 8’s ratification by the voters in the 2008 election overrode the Court’s earlier decision invalidating the state’s marriage exclusion of lesbian and gay couples. Lesbian and gay couples challenged Prop 8 as an “unconstitutional constitutional amendment.” Their argument, rejected by the Court, was that Prop 8’s fundamental change in minority rights should have gone through the more deliberative process for constitutional “revisions.” California Attorney General Jerry Brown made a similar argument, that a Constitution cannot be amended to retract “inalienable” rights.
At war in the Prop 8 case were two competing visions of what a Constitution is for. Representing the supporters of Prop 8, former Judge Kenneth Starr argued that a Constitution (or at least the California one) is an expression of the values held by the citizenry. To use Aristotle’s language, the Constitution is the “soul of the city.” Modernizing Aristotle, California provides its citizens with formal opportunities to express their constitutional commitments, through popular initiatives. Once the voters had spoken, the Court itself would have been engaging in unconstitutional usurpation if it had insisted on same-sex marriage.
Attorney General Brown and Shannon Minter (representing the challengers) argued that a Constitution demands more from the democratic process. Inspired by John Locke, their constitutional assumption is that the constitution is a social contract that guarantees basic rights to everyone. The Declaration of Independence called them “inalienable rights,” which means that even the Constitution cannot take them away without risking dissolution of the social contract. Because the Court itself had in 2008 held that marriage was a fundamental, inalienable right for lesbian and gay couples, Brown and Minter maintained that Proposition 8 was a constitutional betrayal.
A superficial reading of the Court’s opinion suggests that Starr prevailed. The Court upheld Prop 8, consistent with Starr’s democratic updating of Aristotle. But the Court rejected Starr’s argument that Prop 8 nullified the estimated 18,000 same-sex marriages performed between June 15 and November 8, 2008. The effect of the Court’s interpretation is to recognize those marriages, consistent with Brown and Minter’s stance in the litigation.
What is one to make of this Solomonic resolution? It may have been politically motivated, splitting the baby so that neither side would feel disrespected, on an issue that evenly divides the citizenry. It may been motivated purely by rule of law considerations. The Court would have had to stretch its precedents to strike down Prop 8, but the well-established canon against retroactive application of new amendments provided a legally hard-to-question rationale for narrowly interpreting Prop 8.
In our view, the Court was operating, at least in part, under a third understanding of what a Constitution is for. Constitutions establish processes for deliberation about important policies and values we should commit ourselves to. A Deliberative Constitution keeps the channels of political discussion open, insists that representative bodies be accountable to the people, and from time to time nudges the political process.
This is probably what the Court was up to. On the one hand, the Justices were persuaded that citizens were not settled in the gay marriage debate. Even as it allowed Prop 8, the Court reminded voters that a future initiative could overturn its rule. The Court was channeling both supporters and opponents of gay marriage back to the persuasive process; judges would not decide the issue for the people.
On the other hand, the Justices gave a nudge to that deliberation by validating the existing gay marriages. This provided an opportunity for gay marriage supporters to falsify stereotypes of gay people as anti-family. (The biggest anti-gay trope, and one exploited during the Prop 8 campaign, is that rights for gay people will corrupt children.) These lesbian and gay married families might also put to the test traditionalist arguments that gay marriage is bad for the community.
Gay marriage will still come to California, through a future initiative rather than a judicial decision. As we argued in our recent book, the new wave of marriage recognition has been coming in state legislatures (Vermont and Maine, with others to come).
Twenty-two years ago, on the 11th of February 1990, Nelson Mandela walked out of a South African prison, a free man for the first time in twenty-seven years. He immediately assumed the leadership role that would move South Africa from a system of apartheid to a struggling but viable democracy. No one person, not even Nelson Mandela, was solely responsible for this miracle. But no one can doubt the crucial role that he played in the process that brought a new era to South Africa, or that his intellect, sturdy leadership, and political savvy made this process far more peaceful than anyone had predicted would be the case.