Amendment ease draws activists’ ire
The California Supreme Court decision upholding Proposition 8’s same-sex marriage ban illuminated the history and oddities of the state Constitution, provoking renewed discussion about whether voters can too easily amend it.
Whereas the U.S. Constitution has been amended only 27 times, California’s top legal document has been altered more than 500 times, often by voter initiative. The state’s Constitution is the third longest in the world, exceeded only by those of India and Alabama.
Inscribed within its venerable pages are a ban on gill net fishing, a statement that English is the state’s official language, and an assortment of requirements involving liquor and criminal defendants.
Californians can amend their Constitution by obtaining a simple majority vote on an initiative. Chief Justice Ronald M. George observed in Tuesday’s ruling that many other state constitutions are more difficult to amend. Although the court did not call for limiting the amendment process, the majority said such a move would be possible and maybe even proper.
As in other states that allow initiatives, California’s ballot measures have sometimes been used to take away rights from minorities.
“We have seen a whole bunch of law review articles saying that in general the initiative process has been used more against minority groups than to help them,” said Jon W. Davidson, legal director of the gay-rights group Lambda Legal.
California ballots have carried initiatives to ban gays and lesbians from teaching and quarantine people with HIV -- both rejected -- and to permit race discrimination in housing, require English literacy and repeal affirmative action, which passed. The state high court later overturned the housing law on federal constitutional grounds.
In upholding Proposition 8, George disputed the challengers’ contention that the measure was unprecedented in taking away a fundamental right from a minority.
He cited a voter-approved 1894 amendment that withdrew the right to vote from anyone not literate “in the English language.” The provision remained in effect until 1970, when the state high court struck it down as a violation of the federal Constitution.
“People don’t understand that the people of California can change their Constitution,” Justice Kathryn Mickle Werdegar said in an interview. The Proposition 8 case “was about procedure,” she said.
Despite some activists’ anger over Proposition 8, voters are unlikely to restrict their own power to tinker with the state’s most important legal document, experts said. Voters could make it more difficult to amend the Constitution by requiring larger margins at the polls or approval by two-thirds of the Legislature.
At least five commissions have been formed during the past 20 years to look at the initiative process, and not one measure to change it has made it to the ballot, said Fred Silva, senior fiscal policy advisor at California Forward, a nonpartisan, nonprofit group concerned with fiscal reform and state governance.
“There are people on both sides who don’t want anything done -- both liberals and conservatives,” said Bob Stern, president of the Los Angeles-based Center for Governmental Studies.
Still, the state budget fiasco has made constitutional reform a more pressing issue, and even if voters refuse to change the initiative process, Stern believes “the public is ready for an examination of the Constitution.”
An initiative expected to qualify for next year’s ballot would authorize a constitutional convention, where delegates could take a red pencil to the state’s massive tome.
Stern cited a daylong conference on constitutional reform held in Sacramento in February. Attendees had to pay $89 for admission, he said. More than 400 people showed up and some had to be turned away.
“I was stunned,” he said.
When voters amend the Constitution, the state high court can overturn the amendment only if it decides it was a more sweeping revision, which must be put on the ballot by a constitutional convention or two-thirds vote of the Legislature, or because it violated the federal Constitution.
The court concluded that Proposition 8 was not an impermissible revision because it did not alter the governmental plan or framework.
But given the court’s historic May 15, 2008, ruling affirming the right of gays and lesbians to wed, the court might well have found the measure violated federal constitutional equal protection guarantees.
Anti-Proposition 8 lawyers did not pursue that argument, however, fearing that a reversal in the U.S. Supreme Court would set the marriage movement back decades.
Same-sex marriage activists looked askance when two high-profile lawyers, Theodore Olson and David Boies, announced Wednesday that they are challenging Proposition 8 in federal court. For the U.S. Supreme Court to rule in favor of a federal constitutional right to marry, it would have to reject the views of 44 states, 30 of which have constitutional amendments banning gay and lesbian nuptials, Davidson said.
Olson and Boies “believe they know a lot about the Supreme Court, but the reality is they have never done any lesbian and gay rights litigation nor even really any civil rights litigation from the plaintiffs’ side,” Davidson said.
Civil rights groups have tended to choose litigation carefully, starting with issues they think they can win to establish building blocks for matters of more consequence later on. The National Assn. for the Advancement of Colored People first attacked school segregation with a case against law schools, Davidson noted. They have tried to avoid cases that could set an unfavorable precedent.
For now, most activists would prefer to overturn Proposition 8 at the ballot box in 2010 -- a repeal measure could appear alongside the initiative to hold a constitutional convention.