Top 5 reasons why Prop 8 will (or should) be stricken

May 25, 8:41 PMInternational LGBT Issues ExaminerKelvin Lynch

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With all the doom and gloom surrounding the expected upholding of Proposition 8 by the California Supreme Court tomorrow, I thought it might brighten your day a little to look at my collection of the top 5 reasons the court will (or should) strike Prop 8.

1.  Upholding Proposition 8 will make the California Supreme Court irrelevant.

Byron Williams wrote a brilliant article back in March that presents possibly the strongest argument for striking Prop 8.  Williams said that upholding Prop 8 would mean the majority, however slim, becomes the ultimate arbitrator for what is just in the state; or as Ken Starr argued, it allows for the people to make bad decisions. Williams raises the very important question that if, by upholding Prop 8, the CA Supreme Court becomes selectively subordinate to the will of the people.

He says upholding Prop 8 makes the state Constitution inherently contradictory--equal protection, except in those cases when the majority objects. This is a dangerous possibility for any democracy, especially one that holds such a slim majority (Prop 8 passed by a measly 52%).   But the margin of the majority is irrelevant if the court assumes its role.

2.  Proposition 8 oversteps the limits of amending the state Constitution.

Calitics provides a thorough analysis of the limits of amending the California Constitution.  It says,

"Imagine if a majority of the voters passed an initiative that amended the California Constitution to prohibit people of a minority faith from practicing their religion. We would not stand for this change because the fundamental purpose of our Constitution is to protect minority rights from being trampled by the majority. Proposition 8 is similarly flawed."

In the case of Livermore v. Waite (1894), the CASC ruled that an initiative can effect a change only if it is "within the lines" of the existing Constitution.  In McFadden v. Jordan (1948), the court ruled that it may not “substantially alter the purpose” of the Constitution or attempt to “attain objectives clearly beyond the lines of the Constitution as now cast.”

An initiative is a revision rather than an amendment if it changes the underlying principles of the existing Constitution.  The express purpose of Proposition 8 is to take away a person’s right to marry someone of the same gender. The implicated right —- the right to marry the person of one’s choosing —- is protected by California’s Constitution as fundamental and inalienable. Although it is not an expressly enumerated in our Constitution, the right to marry is embodied in the right to privacy and it is a component of the right to liberty protected by the due process clause (as right to privacy is similary emodied in the United States Constitution).

Prop 8 specifically targets gay men and lesbian women, a constitutionally-protected class of people who are entitled to heightened level of protection. In re Marriage Cases held that sexual orientation is “a constitutionally suspect basis upon which to impose differential treatment”. By denying a fundamental and inalienable right to one class of citizens while preserving it for another, Proposition 8 completely eliminates the principle of equal protection on which our Constitution was built.

Finally, the separation of powers doctrine prohibits the electorate, in passing Proposition 8, from interfering with one of the powers occupied exclusively by the judicial branch.  If the legislative branch —- acting through the initiative power in passing Proposition 8 —- succeeded in wresting this power from the courts, it will have effectively abolished the equal protection guarantee itself. Consequently, the separation of powers clause prohibits the electorate from using the initiative power to strip the courts of its central power to enforce the constitutional guarantee of equal protection.

3.  Striking Proposition 8 will help put the brakes on the runaway ballot initiative process that has ruined California's politics and economy.

Ballot initiatives like Proposition 8 have stripped California of representative government.  The majority is allowed to make crucial decisions they are not qualitifed to make.  What is the point of electing legislators if they never make any decisions on our behalf? 

This is the reason the state is in financial ruin, depsite an abundance of human and financial resources. Everybody wants something for nothing. It all began back in 80's, when Republicans were in power in California.  They changed the state Constitution with Prop 13 so that it takes a two-thirds majority to pass a legislative act, but a bare majority to amend the state Constitution.  Their reasoning was that this scheme prevents government tyranny such as imposing taxes to pay for things the state and its citizens need.

Paul Krugman wrote an op-ed piece in the New York Times addressing this very problem.  He wrote,

"The seeds of California’s current crisis were planted more than 30 years ago, when voters overwhelmingly passed Proposition 13, a ballot measure that placed the state’s budget in a straitjacket.  Proposition 13 made it extremely hard to raise taxes, even in emergencies: no state tax rate may be increased without a two-thirds majority in both houses of the State Legislature. And this provision has interacted disastrously with state political trends."

Governor Arnold Schwarzenegger expressed his (and the people of California's) exasperation with the ballot initiatve process after several ballot initiatives he introduced to balance the state budget were soundly defeated in a special election last week.  Schwarzenegger said, "The people of California are saying to the legislature, this is your job, not ours."

4.  The language of Proposition 8 is too ambiguous.

Prop 8 does not deny the existence of same-sex marriage, it merely says they are not recognized in California. Article 1 Section 7.5 of the state Constitution now simply reads "Only marriage between a man and a woman is valid or recognized in California" and took effect November 5, 2008.

What of the 38.000 legal marriages performed in California before November 5th?  What about same-sex marriages performed elsewhere?  Prop 8 does not call for the eradication of these marriages (although Ken Starr argued for that in oral arguments), and it doesn't prevent them from being performed in California in the future. 

This ambiguity leaves the door open for endless Constitutional challenges at the state and federal level by same-sex couples both permanently domiciled and temporarily residing in California. 

 5.  Striking Prop 8 will put the final nail in the coffin of right-wing religious extremism control over the GOP.

The right wing is desperate.  It has no clear leader, it has lost the White House and Congress, and it is losing on gay rights issues.  Paul Krugman says "the GOP has been driven mad by lack of power". 

Striking Prop 8 will be a heavy blow to the right wing extremists who were so instrumental in getting the ballot initiative passed.  In fact, it could be a fatal blow. 

The GOP appears to be leaning towards becoming more moderate.  Despite what you've heard recently from Rush Limbaugh and Dick Cheney, both of them have dismal popularity ratings (30% and 37% respectively) compared to Colin Powell's strong  70% popularity rating, according to CNN.  And Powell's voice is becoming stronger.  He's looking more and more like a contender for the presidential race in 2012. 

Some bloggers have suggested that if the "bunch of activist liberal judges" on the CA Supreme Court strikes Prop 8, it will ignite a furor in the extreme right, and they worry about the safety of LGBT citizens.  Baloney.  The Justices will not be swayed by such fear tactics, and we LGBT people can take care of ourselves, thank you very much.  If my commenters are any indication, the right wingnuts are more afraid of us than we are of them.

My guess is the majority of the GOP will bid good riddance to the extremists.  They had their 8 years, and the blew it, big time.  It's time for some fresh thinking and intelligent leadership, and the GOP knows it.  This especially rings true for younger conservatives, who tend to favor issues like equal rights for all citizens.  Outspoken and smart young conservatives like Meghan McCain have stated unequivocally that the GOP to embrace gay rights to gain younger voters.  Let's hope the GOP is listening.

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