Upholding Prop. 8 is Bad Law

Paul Hogarth complains that by upholding Proposition 8, the California State Supreme Court has made a very odd and inconsistent decision indeed:

while the people have “sovereign power” and can “alter or reform” the Constitution as they see fit, our framework does not allow them to make all changes to the state Constitution. A minimum threshold of voters can collect signatures to put an “amendment” on the ballot, but only the state legislature – or a constitutional convention – can initiate a major “revision.” And the Court failed to understand both the history and basic structure of this distinction.

Before 1911, California did not have an initiative process – and all “amendments” had to come from the state legislature. Every state that distinguishes between “amendments” and “revisions” (and California based its constitution off New York) has a common thread – none of them allow the people alone to make the most profound changes. An “amendment” to the California Constitution is there to “improve” the existing framework, but a “revision” would substantially alter its “substance and integrity.” Even states that passed equivalents of Prop 8 only generally did so after the legislature put it on the ballot.

The Court said Prop 8 was not a revision because it “simply changes the substantive content of … one specific subject area – the … designation of ‘marriage.'” It did not alter the “scope” of the Constitution, and only has a “limited effect on the fundamental rights of privacy, due process and equal protection.” The Court even implied that only changes affecting a wide spectrum of our Constitution are protected from the whims of the public opinion – and explicitly said that a revision is not anything that “abrogates a foundational constitutional principle of law.” Based upon the Court’s narrow definition, it is hard to see how any change to the Constitution would qualify as a “revision.”

So in other words by in effect limiting the definition of ballot measure changes to the constitution to “amendments” they find a way to allow the will of a hostile majority to circumvent the equal protection clause of the state constitution. However he also notes that in choosing to allow the 18,000 gay marriages already licensed to stand because nullifying them would violate due process (after acquiring property rights accruing from marriage), they have set a very strange sitution up indeed. Why the will of a hostile majority trumps the right to marry but not property rights makes no sense at all. Yesterday’s ruling really was bad law.

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