Prop 8 Under Fire (again)
by Dr. Jennifer Roback Morse
All friends of democracy should be troubled that the same court whose decision to nullify a law passed by the state legislature that was overruled by a majority of California voters in the last election is now being asked to override the decision of the people. Gay rights activists are asking the state’s Supreme Court to overturn voter-approved Proposition 8 that limited marriage to one man and one woman on a technicality.
The judiciary should decline this invitation to lawlessness. The whole point of having a ballot initiative process is to allow voters the opportunity to take matters into their own hands when they feel ill-served by their public officials. Proposition 8 originated in San Diego, in the aftermath of the City Council’s fall 2007 decision to join the amicus briefs in the cases that ultimately imposed same sex marriage. The San Diego City Council went through the motions of holding public hearings. After several hours of public testimony on both sides, City Council members pulled out and read statements in support of joining the amicus briefs, statements that were obviously prepared well in advance of any public testimony. Citizens realized that the hearings were a sham.
That episode of being ignored and indeed, insulted by elected officials stimulated the movement that became Proposition 8. A group of San Diego citizens realized that they had to take matters into their own hands to protect their values. The Proposition 8 campaign was a genuine grass roots effort, with an estimated 100,000 volunteers. This was an outpouring of citizen participation, precisely what the Progressive Era founders of the initiative process hoped for. “Yes on 8” was supported largely by small contributions: over 70,000 individuals contributed.
The opponents of Proposition 8 claim that it is a revision, not an amendment, to the constitution. Now is a fine time to tell us! This measure faced litigation before it was even put on the ballot. The two sides argued over the voter information guide, differing over what the initiative would actually do. That language was amended as a result of that process. The Attorney General changed the language of the title of the amendment itself. The initiative was originally called simply, “Limit on Marriage Constitutional Amendment.” After Jerry Brown got finished, the ballot language read, “Eliminates the rights of same sex couples to marry.” That change in wording probably cost several percentage points of voters, as Brown surely anticipated. If the gay lobby seriously believed that initiative was a “revision” instead of an “amendment,” they should have said so in July, before both sides spent over $70 million fighting it out in the electoral process.
It is impossible to escape the conclusion that this is a desperate, last-ditch effort, by sore losers. The plain fact of the matter is that the “Yes on Proposition 8” campaign won, in a David and Goliath type fight. The entire political Establishment, the Judiciary, the legislature, and the governor opposed the amendment. All the daily newspapers opposed it. The gay lobby was also backed by academia and Hollywood. In spite of all that, the public sided with traditional man woman marriage, by approximately the same margin as President-elect Barack Obama: 52% to 48%. Anyone who dislikes the outcome is free to put another amendment on the ballot. That is, as long as the Supreme Court does not debase the initiative process by overturning the results of a fair election. California’s citizen-driven initiative process is one of the jewels of direct democracy.
The Court should not emasculate that process.