Friday, December 05, 2008

Overturn Prop 8?

by Jennifer Morse

All friends of democracy should be troubled that the same court whose decision to nullify a law passed by the state legislature that was overruled by a majority of California voters in the last election is now being asked to override the decision of the people. Gay rights activists are asking the state’s Supreme Court to overturn voter-approved Proposition 8 that limited marriage to one man and one woman on a technicality. The judiciary should decline this invitation to lawlessness.

The whole point of having a ballot initiative process is to allow voters the opportunity to take matters into their own hands when they feel ill-served by their public officials.

Proposition 8 originated in San Diego, in the aftermath of the City Council’s fall 2007 decision to join the amicus briefs in the cases that ultimately imposed same sex marriage. The San Diego City Council went through the motions of holding public hearings. After several hours of public testimony on both sides, City Council members pulled out and read statements in support of joining the amicus briefs, statements that were obviously prepared well in advance of any public testimony.

Citizens realized that the hearings were a sham.

That episode of being ignored and indeed, insulted by elected officials stimulated the movement that became Proposition 8. A group of San Diego citizens realized that they had to take matters into their own hands to protect their values.

The Proposition 8 campaign was a genuine grass roots effort, with an estimated 100,000 volunteers. This was an outpouring of citizen participation, precisely what the Progressive Era founders of the initiative process hoped for. “Yes on 8” was supported largely by small contributions: over 70,000 individuals contributed.

The opponents of Proposition 8 claim that it is a revision, not an amendment, to the constitution. Now is a fine time to tell us! This measure faced litigation before it was even put on the ballot. The two sides argued over the voter information guide, differing over what the initiative would actually do. That language was amended as a result of that process.

The Attorney General changed the language of the title of the amendment itself. The initiative was originally called simply, “Limit on Marriage Constitutional Amendment.” After Jerry Brown got finished, the ballot language read, “Eliminates the rights of same sex couples to marry.” That change in wording probably cost several percentage points of voters, as Brown surely anticipated. If the gay lobby seriously believed that initiative was a “revision” instead of an “amendment,” they should have said so in July, before both sides spent over $70 million fighting it out in the electoral process.

It is impossible to escape the conclusion that this is a desperate, last-ditch effort, by sore losers. The plain fact of the matter is that the “Yes on Proposition 8” campaign won, in a David and Goliath type fight. The entire political Establishment, the Judiciary, the legislature, and the governor opposed the amendment. All the daily newspapers opposed it. The gay lobby was also backed by academia and Hollywood. In spite of all that, the public sided with traditional man woman marriage, by approximately the same margin as President-elect Barack Obama: 52% to 48%.

Anyone who dislikes the outcome is free to put another amendment on the ballot. That is, as long as the Supreme Court does not debase the initiative process by overturning the results of a fair election.

California’s citizen-driven initiative process is one of the jewels of direct democracy. The Court should not emasculate that process.


Pearl said...

What's interesting is that the San Diego City Council struck again just before the elections, deciding to issue a joint statement of opposition to Proposition 8. They were met with a huge outcry. However, as you mentioned that their 2007 testimonies were obviously written well in advance of public hearings, so too had their decision been made regarding opposing Prop 8 before they even polled the people they claim to represent. I found it extremely gratifying when it was made known that San Diego County had voted Yes on 8, 54% to 46%. What happened to elected officials speaking for the people they were elected to represent instead of pursuing their own personal agenda? Argh.

Anonymous said...

Sore losers? If you are a law abiding and tax paying citizen in a loving, committed relationship like I am, how might you feel if a relatively small majority of voters who had been deceived by very misleading Yes on 8 campaign, stripped you of a basic right? And if you are a relatively intelligent human being, might you not be concerned that discrimination of any one group puts every other group at risk for discrimination and that the constitution was designed, in part, to protect minority groups from the "tyranny of the majority"? And if none of this concerned you, wouldn't you feel the least bit disturbed that discrimination and hate were allowed to masquerade as morality?

robt ™ said...

Have you ever read the CA State Constitution or the history of civil rights struggles? Have you read the briefs against prop 22 and Prop 8? Have you read the rulings of the courts? Have you taken a US history and/or government class? Indeed,
your ignorance is overwhelming and if there is any "lawlessness" it is your lack of historical and political history, which isn't really "lawlessness" -- just stupidity.

Nic said...

Equality California and others did bring the issue of revision vs. amendment to the CA Supreme court before the election but the court declined to hear the case at that point, waiting until after the election to see if such action would be necessary. The role of the Supreme Court is to, among other things, interpret laws and to protect minorities from the tyranny of the majority. Proposition 187 was an initiative that passed but was later found unconstitutional by the CA Supreme court. Minority rights groups such as the Asian Pacific American Legal Center, Mexican American Legal Defense and Educational Fund, Equal Justice Society, California NAACP and the NAACP Legal Defense and Educational Fund have petitioned the court to stop the enactment of Proposition 8 "because it would mandate discrimination against a minority group."

Anonymous said...

In Republics, the great danger is, that the majority may not sufficiently respect the rights of the minority.

James Madison