I remember discussing a bill the California legislature was considering years ago with a Sacramento lobbyist friend. I pointed out that the bill was likely unconstitutional. He responded simply, “Oh, they don’t care about that.” He has been proven correct many times since.
It happened again last week when a court struck down a 2018 California law mandating how many women must be on a public company board if headquartered in the state. The law had no mandate related to the qualifications of such persons, only that they “identify” as female.
The court ruled that the mandate violates the “equal protection” clause of the California and U.S. Constitution. A similar mandate pertaining to minorities and LGBT people was struck down by another court earlier this year.
Under the 2018 law, the number of women required to be on the board varied based upon the size of the board. For instance, a board of five required at least two women, while a board of six required at least three women. Incredibly, while supporters claim the law is about diversity, a company could have a board without a single male and still comply with the law.
The law was discriminatory on its face in providing preferences based upon gender. If you are a male, there are a limited number of board seats available. If you are a woman, the number of seats is unlimited.
Californians have twice voted definitively, 1996 and 2020, against affirmative action. Its progressive politicians, however, push forward regardless of public sentiment, calling it instead, “diversity, equity, and inclusion.” But, in fact, it’s just good old-fashioned affirmative action. Unfortunately for them, the California constitution prevents such discrimination, and now a second California judge has stood up to the woke warriors and ruled as such, despite the risk of being cancelled.
Los Angeles County Superior Court Judge Maureen Duffy-Lewis said the law’s “goal was to achieve general equity or parity; its goal was not to boost California’s economy, not to improve opportunities for women in the workplace nor to protect California taxpayers, public employees, pensions and retirees.” She found that the real goal was “gender-balancing, not remedying discrimination…” She also noted that the purpose was not remedying discrimination because the state “could not identify any specific, purposeful, intentional and unlawful discrimination to be remedied.”
Humorously, while the left is obsessed with everyone being the same, the state resorted to gender stereotypes to justify the mandate. It argued that women are more likely than men to be “consensus builders” and engage in “less risky behavior in investments.” The judge refused to indulge such stereotypes.
State Senate leader Toni Atkins (D-San Diego) said the ruling was disappointing. “More women on corporate boards means better decisions and businesses that outperform the competition,” she said.
Atkins, like most progressives, does not understand how the free market works. In a centrally controlled economy, the government tells businesses how to operate. In a free market economy, the businesses decide, and the ones which make the best decisions rise to the top. Thus, if more women on boards means outperforming the competition, the profit motive of businesses will naturally cause them to implement it.
The ruling did not come as a surprise. David Levine, a law professor at the University of California, Hastings, said based upon state and federal law, “mandating a quota like this was never going to fly.” Governor Jerry Brown, who signed the law, knew that. In a letter from former Secretary of State Alex Padilla weeks before the Governor signed the law, he warned that it was probably unenforceable and “any attempt … to collect or enforce the fine would likely exceed his authority.” Brown acknowledged the law may be overturned, but signed it to “send a message” during the #MeToo movement. He also knew it would take years for the law to be overturned, meaning it would be implemented regardless of its constitutionality. That is the game, and it worked.
State leaders swear an oath to “support and defend the Constitution of the United States and the Constitution of the State of California.” But the truth is they see such documents as an impediment to implementing their progressive utopian dream society. As my lobbyist friend said, and this ruling demonstrates, when it comes to violating the state or federal constitution, they just don’t care.
