The Los Angeles County Board of Supervisors on Wednesday joined the list of challengers to Proposition 8, the ballot measure that amends the state constitution to ban same-sex marriage.
The board joins supervisors in
This is a risky gambit, for the plaintiffs and for the court.
Most voters aren't versed in the finer points of constitutional law, such as revisions vs. amendments to the constitution. They do have a sense of fair play that could mean a backlash, perhaps even from some opponents of Prop. 8, if the measure is overturned after being approved by the voters.
There's plenty of precedent for overturning ballot measures. Courts have rejected open primaries, campaign finance measures and a rather sweeping consumer-protection law in recent years. But none of those generated the political heat that Prop. 8 has.And neither term limits nor Prop. 13 was ruled a revision, so it may be tough to sell Prop. 8 as such.
On the court, two justices are up for retention elections in 2010. One is Chief Justice Ron George, who wrote the same-sex marriage ruling, which infuriated many conservatives. The other is Ming Chin, who dissented. Both George and Chin faced retention challenges in 1998, led by critics of a decision that overturned a state law requiring parental consent before a minor undergoes an abortion. Both formed campaign committees, raised money and fought off their opponents, which is rarely necessary in California judicial races.
George probably will have to do that again. Although he's a former prosecutor whose rise on the bench has been orchestrated by Republican governors, it's conservatives who will be looking to unseat him, much as they did in 1986 with Chief Justice Rose Bird and two associate justices appointed by Democrats.
This isn't to suggest that Prop. 8 should stand unchallenged. But it would better political sense for advocates of same-sex marriage to try to repeal it with another ballot measure in 2010.
A comparison of election results from 2000 and 2008 shows that support for same-sex marriage increased from 39 percent to 48 percent. The sad fact is opponents of Prop. 8 may have defeated it with a better campaign. Crowds have turned out to protest, but where were those crowds before the election? There was next to no effort to counter the most effective pro-Prop. 8 ads, which claimed negative impacts on churches and schools. And instead of gay families, the campaign relied on politicians such as Sen. Dianne Feinstein and schools chief Jack O'Connell to make its case.
A court fight only compounds the mistakes of the campaign. Supporters of same-sex marriage need to convince the electorate.
-- Jim Sweeney
Interesting comments and suggestions here, Jim, on Prop. 8. For readers, some information on ballot measures in CA: Roughly, 1 in 3 that appears on the ballot is passed by voters. Of those that pass, about 7 in 10 are found unconstitutional. Seeking to overturn Prop 8 through a legislative referral is time-consuming, divisive, and long-range. It is much more likely, and indeed, less troublesome in this case, to have the Courts weigh in on this issue on the question of civil rights before traveling (again) through the route of the ballot box.
-David McCuan, Sonoma State U.
Translation: in the neo-progresive world, Democracy doesn't count. Glaring omission in Sweeney's musings: it was black, Christian familys who put prop 8 over the top and not "conservatives" however ill defined.
Also, "Jim," is it not interesting that Dave in the university community pays gives scant creedence to our democratic election process?
I don't think I said conservatives passed Prop. 8. That's certainly not the point I was trying to make.
However, negative reaction to the state Supreme Court ruling in May certainly fell into a traditional conservative vein: judges making law, judges ignoring the will of the voters. If the court were to overturn Prop. 8, there's sure to be more of that reaction.
I suspect Ron George already is looking at a campaign against him in 2010, and it would be even more aggressive if the court overturned Prop. 8. That campaign will almost certainly be driven by traditional conservatives (including some of the Christian opponents of Prop. 8). I doubt black voters will be a significant part of that coalition.
As for respecting the democratic process, we've got a long tradition of protecting the rights of the minority in this country. Take another look at what the Founding Fathers wrote about the tyranny of the majority. Federalist No. 10 (James Madison) is a particularly good reference. And, you're no doubt aware, the concept of judicial review dates to 1837 and the Marbury v. Madison decision.
Yes, we do have a tradition of respecting the rights of minorities in this country, but we have an equally important tradition of respecting the votes of the majority which is, fundamentally, the clearest definition of Democracy that I know of. Sadly, it’s a tradition that a portion of the Gay community and its neo-progressive supporters no longer respect. The voters have spoken over and over again on this issue. And speaking of a minority, you may not be aware of this, but there is a rational minority within the Gay community that does not support Gay marriage. They hold that the love they feel for one another transcends that of Heterosexuals and their common, traditional institutions. But, that’s the problem with this paper; the level of discourse is so low and anti-intellectual.
Direct democracy was never the intent of the founding fathers who realized separation of powers and a system of checks and balances was necessary to protect the minority from the tyranny of the majority. That is why they established a representative democracy rather than a direct one. The founding fathers were painfully aware of the history of abuses resulting when restrictive religious beliefs were used to deny equality to a minority. They believed all people were created equal and should have equal treatment. When one group, even a majority, uses their beliefs to restrict the equal treatment of others, that is discrimination and our form of government was intended to prohibit that. Equal rights for a minority should never be subject to a popular vote.