Posted by: Randy Allgaier | May 26, 2009

California’s Constitution is as broken as its budget: Prop 8 Upheld


Today the California Supreme Court issued its ruling to uphold the hateful Proposition 8 banning same sex marriage. The Court also held that the 18,000 marriages that occurred between the time of Court’s ruling that gay marriage was protected under the California Constitution and when the electorate voted to amend the Constitution to ban same sex marriages. My marriage occurred in September 2008 and thus will remain legal. However after Prop 8 was successful in the election, my gay and lesbian brothers and sisters cannot marry. That makes me feel very odd and rather uncomfortable.

But today’s decision isn’t the end of this issue and I don’t believe that the discrimination inherent in the bigoted and homophobic Prop 8 is the Court’s doing.

The Court was bound by the Constitution which allows for easily amending the Constitution. It is the people of California that voted to take away the rights of gays and lesbian and it is up to those of us in the gay and lesbian community to educate Californians about this issue. We should not focus our anger on the court , but instead on educating our fellow Californians. Were those that voted for Prop 8 bigoted, homophobic or ill educated about the issue? It’s probably a mix of all three. We’ll never be able to change the bigots or the homophobes but we can educate the ill educated.

Californians voted for Prop 8. It is those people who voted for Prop 8 that voted to discriminate.

The Court was painstaking in addressing the fact that they believe that same sex couples should have the right to marry, but the question before them was about the process- is a proposition that requires a simple majority enough to amend the Constitution as Prop 8 did.

In their decision the Court stated “The principal issue before us concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state constitution itself through the initiative process,” the court wrote, “not to determine whether the provision at issue is wise or sound.”

The Majority Opinion stated: “In addressing the issues now presented in the third chapter of this narrative, it is important at the outset to emphasize a number of significant points. First, as explained in the Marriage Cases, supra, 43 Cal.4th at page 780, our task in the present proceeding is not to determine whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution. Regardless of our views as individuals on this question of policy, we recognize as judges and as a court our responsibility to confine our consideration to a determination of the constitutional validity and legal effect of the measure in question. It bears emphasis in this regard that our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values. “

The Court said they felt that the basic argument is that the California Constitution is just too easy to amend. They are right.

The Court said “it is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it. If the process for amending the Constitution is to be restricted — perhaps in the manner it was explicitly limited in an earlier version of our state Constitution (— this is an effort that the people themselves may undertake through the process of amending their Constitution in order to impose further limitations upon their own power of initiative.”

In 1911 California law added “The first power reserved to the people shall be known as the initiative. Upon the presentation to the secretary of state of a petition . . . signed by [the requisite number of] qualified electors, . . . proposing a law or amendment to the constitution, . . . the secretary of state shall submit the said proposed law or amendment to the constitution to the electors at the next succeeding general election . . . . [¶] . . . [¶] Any act, law or amendment to the constitution submitted to the people by . . . initiative . . . petition and approved by a majority of votes cast thereon, at any election, shall take effect five days after the date of the official declaration of the vote by the secretary of state.” (Italics added.) By virtue of this provision, an amendment to the California Constitution could be proposed either by legislative action or by the people directly through the initiative process.”

The Court listed the amendment process of some of California’s sister states and the much more onerous process that they require.

This Court’s argument makes sense to me as a matter of structural analysis: the California Constitution allocates the California People large powers of self-governance, and (as opposed to the federal constitution) they have a large and powerful role to play in an ongoing conversation with the courts, the legislature and the Governor in the shape of constitutional governance

The whole point of having rights safeguarded by a Constitution interpreted by an independent judiciary is that some things are so fundamental that they ought not be left to the caprice of a fleeting majority vote — if the People wants to amend the Constitution (at least, insofar as most of us understand what a “constitution” is supposed to do), it ought to be a more serious and onerous process than a one-day 50%-plus-one vote. One wonders what makes it a constitution if it is so easily amendable.

As was asked in an excellent post on the Daily Kos: Would the Miranda decision have survived a citizen initiative vote in its wake? Brown v. Board of Education?

I despise the impact of today’s decision, but what is flawed is California’s amendment process. Same sex marriage will eventually come to California- it will take some effort and money and tenacity.

But California’s Constitution is as broken as its budget.


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