One of the most irresponsible actions a public official can take is to vote for — or worse, sign into law — a bill that that they know is unconstitutional.
Public officials take an oath to uphold the Constitution, and when they intentionally enact a law that violates the constitution, they impose needless and illegal burdens on citizens. In addition to the costs and consequences of complying with the law, there are high costs for the legal challenges needed to have an unconstitutional law taken off the books. Part of the cost is also borne by taxpayers, as the government’s lawyers spend time defending the indefensible.
None of matters to politicians who want to use a law as a publicity stunt, or a message, or a virtue signal, or a lobbying effort. They don’t really care that the force of government will be used to make their point, or that innocent people could face fines and other penalties for failure to comply.
Gov. Jerry Brown signed Senate Bill 826 in September 2018, warning in his signing message that the bill had “potential flaws that indeed may prove fatal to its ultimate implementation,” and that “serious legal concerns have been raised.”
SB 826 was authored by Sen. Hannah-Beth Jackson and sponsored by the National Association of Women Business Owners-California. The legislation said there was a “relative lack of women on corporate boards” and that the gender disparity was likely to continue for “the next forty to fifty years if proactive steps are not taken to achieve gender parity.”
So the law required publicly held corporations with principal executive offices in California to have at least one and as many as three female directors on the board no later than January 2022.
Opponents of the bill, led by the California Chamber of Commerce, did in fact raise specific objections to the bill on legal grounds, as Gov. Brown said. “SB 826 violates the equal protection clauses of the U.S. Constitution and the California Constitution, as well as the Unruh Civil Rights Law (Civil Code Section 51),” they argued, and “conflicts with Corporations Code Section 2116 (the internal affairs doctrine).”
Judicial Watch filed a lawsuit challenging the constitutionality of the law, and now a California Superior Court judge has struck it down as unconstitutional, exactly as predicted.
Judge Maureen Duffy-Lewis issued her decision on Friday, ruling that the law violated the equal protection clause of the state constitution. There was no showing, she wrote, that the law was meant to remedy “specific, purposeful, intentional and unlawful discrimination.”
It’s not enough to show a gender disparity in order to compel companies to hire or appoint more women.
Opponents of the bill argued at the time that companies were making “significant efforts to address and improve diversity in the workforce by focusing on their hiring practices, training promotion, retention, etc.,” and that mandated quotas were not “productive.”
They’re also not legal.
The state may appeal the ruling anyway. “We believe this law remains important,” said state Senate President Pro Tem Toni Atkins, calling it a “studied, proven fact” that “more women on corporate boards means better decisions and businesses that outperform the competition.”
Then there shouldn’t be any need for a law requiring it.