California's Flawed Initiative Process

The recent California Supreme Court decision upholding Proposition 8, which declares that only a marriage between a man and a woman is valid and recognized in this State, disappointed many as evidenced by demonstrations all over the country denouncing the Court. But the problem lies elsewhere than with the Court. It lies with the scant 52.3 percent majority of the voters who approved the measure and with the flawed initiative process itself which allowed a bare bigoted majority to change the California Constitution.

I don't think the word "bigot" is too strong to describe these voters. I haven't heard or read anything on the "yes" side of the Proposition 8 debate that suggests I'm being too harsh. Ultimately, the "yes" crowd's argument relies on the idea that marriage traditionally has been recognized only between a man and a woman. But as the Cal. Supremes pointed out in their earlier decision in the Marriage Cases, tradition is not a good enough reason to deprive gays of the right to marry. Instead they should be afforded the same respect and dignity under the law that heterosexual couples enjoy.

I would add that if tradition is an adequate reason to deprive a minority of the right to marry, then there should have been nothing wrong with the old miscegenation statutes invalidated by the U.S. Supreme Court in Loving v. Virginia because until that case was decided, there had been a long tradition barring interracial marriage. Jim Crow generally had a long tradition. If tradition trumps civil rights, why not have Blacks drink out of separate water fountains again?

Much of the opposition to gay marriage is based in religious strictures. In fact, the largest financial contribution to the pro-Prop. 8 forces came from the Mormon Church, probably the most homophobic church in the country, apart from Fred Phelps' little congregation of haters in Kansas. Churches are free to reject gay marriage for themselves under the Free Exercise Clause of the First Amendment. But insofar as marriage is a civil institution, these religious precepts are entirely irrelevant to the question of equal rights.

The California Supreme Court was forced to accept the will of the voters. It could not conscientiously do otherwise. In the Marriage Cases, the court held that state laws limiting marriage to a man and a woman were unconstitutional because they violated the equal protection clause of the State constitution. Once voters amended the Constitution to reimpose the traditional limitation on marriage, the court had to recognize an exception to the equal protection clause reflected in the language of Proposition 8.

The structural problem leading to this disappointing result is the initiative process itself which allows a bare majority of voters to change the Constitution. Because it is so easy to do, the California Constitution has been amended by voters more than 500 times since it was enacted in 1850. By contrast, the United States Constitution, which has a more rigorous amendment process, has only been amended 27 times since 1789.

So much for the California Constitution as an enduring framework for the guarantee of individual rights. And herein lies the rub. Protection of individual rights is fundamentally at odds with democratic governance. The rights of the majority are always protected, at least theoretically, under a democratic model of government. It is the minority whose rights must be jealously guarded from encroachment by the majority. Enactment of constitutional amendments by a simple majority through the initiative process fails to protect minorities from majority tyranny. At the same time, this is a state that requires a 2/3 vote of the Legislature to pass a budget or impose a tax increase.

This is not the first time the initiative process has been used to weaken rights. For example, the California Constitution was amended by the voters to declare that capital punishment is not cruel and unusual.

In a proposition known euphemistically as the "Victims' Bill of Rights", voters stripped away an entire body of state law which afforded greater protection to Californians than the federal government recognizes under the Fourth, Fifth and Sixth Amendments. As a result, California courts are powerless to depart from United States Supreme Court precedent which in recent years has systematically chipped away at these rights and moved the country in the direction of a police state.

Finally, voters have enacted provisions which weaken procedural protections for criminal defendants in court. These include depriving them of a post-indictment preliminary hearing, allowing hearsay testimony by police officers instead of requiring victim testimony at preliminary hearings, imposing limitations on plea bargaining (which in practice are ignored) and removing judicial discretion at sentencing. The effect of these choices has been to overcrowd the prison system to the point that conditions have been declared unconstitutional. This has led to federal court intervention which will force the state to release prisoners early.

So the strategy now should be to put an anti-Prop. 8 measure on the ballot. It will pass. Once that's done, we need to change the Constitution to require a 2/3 vote to pass a constitutional amendment.

My $0.02.