Metropolitan News-Enterprise


Thursday, November 3, 2011


Page 7



Proposition 8 California’s Fractured Fairy Tale

Why Permitting the Majority to Remove the Civil Rights of the Minority is Wrong




(The writer is an attorney for a court. The views he expresses are his own.)

California’s antiquated initiative process has been around for over 100 years and is politically fracturing. However for more than a century, Oregon has led the country in direct democracy, with the state’s voters confronting more initiatives than other Americans.

Referendums have been a part of the California Constitution since 1849. The initiative and optional (or facultative) referendum however were introduced in 1911, by a constitutional amendment called Proposition 7. It passed and became effective in 1912.

People around the world are studying the Oregon example, seeking lessons about what works, and what doesn’t, in citizen legislation.

California should take notice of Oregon’s progress in adapting the state initiative system to meet federal constitutional thresholds.

Californians struggle with any attempt to redesign our own century-old direct democracy but redesign is needed in order to account for the 20th Century federal developments in equal protection and due process.

In fact, that struggle is harming the process because simply put, the initiative process was approved in an era where “separate but equal” was the law of the land and states held greater powers than they once did. Since Brown v. Board of Education (1954) 347 US 483, however, “separate but equal” was abolished and Brown gave rise to equal protection being interpreted as imposing a general restraint on the state’s ability to discriminate against people based on their protected class. Further developments in equal protection permitted states to enlarge their definition of protected classes while at the same time holding them to the federal equal protection standard. And this is what the Proposition 8 issue boils down to because the definition of class has been expanded in California to include gays and lesbians.

The pre-election review of Proposition 8 was denied by the California Supreme Court. If done, however, California might have acknowledged that the state is bound by the limits of equal protection, since a proper analysis would have shown that the minimum standards set by equal protection were not met and this nonsense of bleeding the taxpayers may have stopped.

As it stands now, we need the court to modify the 1911 rules that became effective when Plessy v. Ferguson was the law of the land. It is time to adopt a review process under contemporary equal protection guidelines.

Does this mean a change in the initiative process? That is subject to debate but perhaps it only requires a change in the judicial process for the court to give a pre-ballot review of the initiative reviewed strictly along the lines of does it pass constitutional muster on a federal level.

I saw this problem in 2008 and extensively wrote on it for the MetNews. The court was then headed by Chief Justice Ronald George, who, while a brilliant man, apparently did not grasp the future.

The original Proposition 8 decision concluding that it was an amendment (and not a revision), in hindsight, was shortsighted. Clearly it did not feel the future as I and many other scholars did.

True, under the current outdated framework of the California Constitution, the removal of civil rights is permitted by a simply majority vote of the people but many concur that this is wrong under any type of federal analysis. 

I am not discounting Yes on 8’s position as the law reads but the 20th Century developments in federal law, along with an absence of an actual injury at the trial level and the lack of a showing of an economic or physical harm to third parties, should end the case there at the District Court level. Constitutional scholars know that in matters of equal protection, these things cannot be removed by a state constitutional amendment.

Stated another way, as to the issue of Yes on 8’s claim of standing, as I see it, Yes on 8’s position is that they must be granted standing to defend the California same-sex marriage ban in federal court where the state refuses to act in order to protect the power of the people to amend their constitution.  But that is a fallacy. state constitutions cannot be used to discriminate against protected classes. (Romer v. Evans (1996) 517 US 620.)

The opponents argued Yes on 8 must be denied standing in order to protect the power of the people to elected state officers, in accordance with the state Constitution.

Both however must deal with the real implications of equal protection as applied through the 14th Amendment to the states.

The seven-member California Supreme Court made its decision based on state precedent. I tip my hat to retired Justice Carlos Moreno for implicitly acknowledging my revision theory that was first published in the MetNews on June 17, 2008. However, with a change in leadership in the California Supreme Court, I know two new sets of eyes will look at this issue from a fresher perspective.

The California Supreme Court must realize the truth before them. Sure they can pass the buck and hold standing exists for Yes on 8 and ignore equal protection, and permit standing by judicial fiat. But that would be judicial activism because it would expand current California constitutional law. The proof is that there is nothing in the California Constitution or state laws that permit Yes on 8 to appeal when the government decides not to. So the court could rule against Yes on 8 without even have to expressly rely to any federal authority as the basis for their decision.

The court could merely keep the current framework intact. The next time a pre-election review is sought, however, perhaps the court could view it using the floor of equal protection to protect hated minority from having to be subjected to horrendous bigoted advertisements directed at the targeted minorities and their families all in the name of free speech.

The Ninth U.S. Circuit Court of Appeals seemed troubled about the Yes on 8 position and sent the question back to the California Supreme Court. I am not sure if they expected the court to hold a full blown hearing on it but they did on Sept. 6, 2011.

At that hearing, Justice Joyce Kennard expressed the concern that if the court were to “nullify” the people’s power to pass initiatives, it would leave the people “unrepresented.” But the court, at this time is not being asked to make a rule as to standing for District Court matters but on matters of appeal involving civil rights. The executive branch’s de-facto veto power over initiatives would be in extremely limited matters. Those situations arise where there is no actual injury or harm shown by appellants at the District Court level when it involves a matter of civil rights. In these situations, the separation of powers must be respected and left to the governor and attorney general to decide in the powers reserved to them.

Until the Ninth Circuit receives the state court’s opinion, the federal appeals panel has postponed any ruling on the legal authority of Yes on 8 to appeal a federal district court decision or to dismiss the appeal and reinstate the District Court decision.

But, let’s be honest. Logically, no matter how you slice it, this is a pure lack of standing case with an equal protection violation rolled into it. The case is not ripe for the ultimate Defense of Marriage (“DOMA”) issue that will eventually reach the United States Supreme Court because the high court could always toss it on standing alone.

Finally, Californians passed Proposition 8 on Nov, 4, 2008. The court has about until Wednesday, Dec. 6, 2011 to issue it ruling. It would be nice to have an early ruling on Nov. 4, 2011 to erase the mistakes of the past.


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