California Supreme Court to hear Prop 8 case on March 5th
The California Supreme Court will hear oral arguments to determine the validity of Proposition 8, the constitutional amendment approved by 52% of the state’s voters last November. Prop 8, which this blog is not a fan of, overturned a previous decision of the state’s high court that required the state to recognize and allow same-sex marriage.
The argument brought by opponents of the measure is that it violates not the Federal Constitution but certain provisions of the State Constitution, which contains several different amendment mechanisms including initiatives, which can be placed on the ballot by petition, and revisions, which can only be put on the ballot by a super majority of the state legislature.
The plaintiffs argue that a measure eliminating fundamental rights from a historically persecuted minority amounts to a revision of the Constitution and exceeds the power of initiatives.
A revision can be placed on the ballot only by a two-thirds legislative vote or by delegates to a state constitutional convention. The court has upheld such challenges to initiatives only twice in its history, in 1948 and 1990.
Opponents of Prop. 8 also argue that it violates the constitutional separation of powers by stripping the judiciary of its ability to protect a minority group. Attorney General Jerry Brown has sided with opponents of the measure and argues that it is invalid for another reason: that it abolishes “inalienable rights,” guaranteed by the state Constitution, without a compelling justification.
The plaintiffs clearly have a tough case to argue and, as a matter of law, I’m not sure if they’re correct about the measure constituting a serious revision. I didn’t think they had a case at first, but now I think they may. Imagine if a simple majority of the electorate could revoke the right of women or of African Americans to vote. Or if 50% +1 could take away the presumption of innocence or freedom of religion. (All of these are protected by the U.S. Bill of Rights, but the point remains.)
Keep in mind that the entire point of a Bill of Rights is to keep the majority from doing what it wants. If it can be overturned by a simple majority, then what’s the point? It’s just a speed bump, not any sort of true impediment to the mob or protection for political minorities.
Even if Proposition 8 is permissible under that wonderful document that is the California Constitution, it shouldn’t be. Amending the Constitution should take more than a few signatures on a petition and then a simple majority of the electorate. A simple majority to ratify an amendment proposed by a super majority of the legislature is fine; that’s what almost all, if not all states allow. But an amendment proposed by petition, if allowed at all, should have to secure 60% of the vote, I think.
The lead case is Strauss vs. Horton, S168047. The Court will also be hearing arguments concerning whether the 18,000 same-sex marriages performed prior to the amendment was approved are still valid. I imagine they would be, but the state just couldn’t recognize them—if Proposition 8 is upheld. The lead attorney for those seeking to overturn the amendment and limit marriage rights is Kenneth Starr, the former investigator of President Clinton.