Proposition 8: When Courts Overturn the Will of the People

Norma Jeanne Strobel

Ralph E. Shaffer

Proposition 8: When Courts Overturn the Will of the People

It’s been done before in California –

Stunned by the narrow victory to ban same-sex marriage in California , gay and lesbian organization lawyers have moved to the courts. Ambiguities regarding amendment and revision of the state constitution gives them hope that the state Supreme Court will overturn the Proposition 8 victory.

Article 18 of the state constitution makes it clear that there is a distinction between a revision and an amendment to the constitution. While an amendment may be proposed by voters through the initiative process, a revision must originate in some other form, either by a constitutional convention or by action of the state legislature. The issue then is whether Proposition 8 amended or revised the constitution.

On rare occasions courts have voided voter-approved initiatives. In the early 1960s, an initiative banning pay television was overturned. In 1964, forces opposed to integrated housing pushed through an initiative repealing the Rumford Fair Housing law. That too was subsequently thrown out by the court. Those initiatives had overwhelming voter support and were clearly the will of the people. On two other occasions, in 1948 and 1990, the state Supreme Court rejected initiatives on grounds that their provisions so fundamentally altered the structure of government that they were inappropriate for the initiative process.

Opponents of same-sex marriage first tried to ban it in California through an initiative. It carried, but the state Supreme Court ruled that it violated the state constitution.

That led to Proposition 8.

With passage of the proposition, the county clerks stopped issuing marriage licenses to same sex couples. But confusion exists.

While State Attorney General Jerry Brown insists that the new proposition must be enforced, and that no same-sex marriage can legally take place, enforcement by county clerks has been without uniformity. At least one couple was able to receive a license in Los Angeles following passage of the amendment. While Solano County continued to issue licenses briefly, San Francisco hinted it may issue them as well.

This is not the first time that county clerks have been inconsistent in their reaction to a newly adopted constitutional amendment. A comparable incident occurred in 1870. That was an amendment to the United States Constitution. At issue was the right of blacks to vote. California ’s Constitution limited voting to whites.

When southern states were forced to grant black suffrage, congressional Republicans proposed the 15th Amendment which banned race as a condition for voting. California ’s Democratic-controlled legislature refused to ratify the amendment. But, the amendment became law. California ’s constitution conflicted with the US Constitution. State Attorney General Joseph Hamilton instructed clerks not to enforce the amendment.

When Los Angeles County Clerk Thomas Mott refused to register Louis Green, Green sued -- the first voting rights case to be brought in the United States under the 15th Amendment. The California court ruled for Mott -- blacks could not register. Shortly thereafter, Congress adopted the Forced Laws imposing penalties on those who would not register blacks. California ’s barriers to black registration ended. County clerks obeyed the law. The will of the people of California was trumped by the will of the people of the United States .

The controversy over Proposition 8 does not currently involve the US Constitution. It focuses on the equal protection clause of California ’s constitution. Proposition 8 proponents believe that the will of the people gives them the right to amend their own constitution.

.

The regulation of social mores has long been considered the proper function of state government, not national government. Unlike his predecessor of 1870, California Attorney General Brown has pledged to enforce this constitutional change.

After the California Supreme Court created such great hostility when it overturned the original anti-same-sex marriage initiative in 2000, it may be reluctant to once again over-ride the will of the people by repealing Proposition 8 in 2008.

It would have been better had the court ruled on the constitutionality of the proposition “before” the election.

. . . . . . .

Norma Jeanne Strobel, Professor Santa Ana College Retired and Ralph E. Shaffer, Professor Emeritus Cal Poly Pomona can be contacted at [email protected]

Norma Jeanne Strobel

Ralph E. Shaffer

Proposition 8: When Courts Overturn the Will of the People

It’s been done before in California –

Stunned by the narrow victory to ban same-sex marriage in California , gay and lesbian organization lawyers have moved to the courts. Ambiguities regarding amendment and revision of the state constitution gives them hope that the state Supreme Court will overturn the Proposition 8 victory.

Article 18 of the state constitution makes it clear that there is a distinction between a revision and an amendment to the constitution. While an amendment may be proposed by voters through the initiative process, a revision must originate in some other form, either by a constitutional convention or by action of the state legislature. The issue then is whether Proposition 8 amended or revised the constitution.

On rare occasions courts have voided voter-approved initiatives. In the early 1960s, an initiative banning pay television was overturned. In 1964, forces opposed to integrated housing pushed through an initiative repealing the Rumford Fair Housing law. That too was subsequently thrown out by the court. Those initiatives had overwhelming voter support and were clearly the will of the people. On two other occasions, in 1948 and 1990, the state Supreme Court rejected initiatives on grounds that their provisions so fundamentally altered the structure of government that they were inappropriate for the initiative process.

Opponents of same-sex marriage first tried to ban it in California through an initiative. It carried, but the state Supreme Court ruled that it violated the state constitution.

That led to Proposition 8.

With passage of the proposition, the county clerks stopped issuing marriage licenses to same sex couples. But confusion exists.

While State Attorney General Jerry Brown insists that the new proposition must be enforced, and that no same-sex marriage can legally take place, enforcement by county clerks has been without uniformity. At least one couple was able to receive a license in Los Angeles following passage of the amendment. While Solano County continued to issue licenses briefly, San Francisco hinted it may issue them as well.

This is not the first time that county clerks have been inconsistent in their reaction to a newly adopted constitutional amendment. A comparable incident occurred in 1870. That was an amendment to the United States Constitution. At issue was the right of blacks to vote. California ’s Constitution limited voting to whites.

When southern states were forced to grant black suffrage, congressional Republicans proposed the 15th Amendment which banned race as a condition for voting. California ’s Democratic-controlled legislature refused to ratify the amendment. But, the amendment became law. California ’s constitution conflicted with the US Constitution. State Attorney General Joseph Hamilton instructed clerks not to enforce the amendment.

When Los Angeles County Clerk Thomas Mott refused to register Louis Green, Green sued -- the first voting rights case to be brought in the United States under the 15th Amendment. The California court ruled for Mott -- blacks could not register. Shortly thereafter, Congress adopted the Forced Laws imposing penalties on those who would not register blacks. California ’s barriers to black registration ended. County clerks obeyed the law. The will of the people of California was trumped by the will of the people of the United States .

The controversy over Proposition 8 does not currently involve the US Constitution. It focuses on the equal protection clause of California ’s constitution. Proposition 8 proponents believe that the will of the people gives them the right to amend their own constitution.

.

The regulation of social mores has long been considered the proper function of state government, not national government. Unlike his predecessor of 1870, California Attorney General Brown has pledged to enforce this constitutional change.

After the California Supreme Court created such great hostility when it overturned the original anti-same-sex marriage initiative in 2000, it may be reluctant to once again over-ride the will of the people by repealing Proposition 8 in 2008.

It would have been better had the court ruled on the constitutionality of the proposition “before” the election.

. . . . . . .

Norma Jeanne Strobel, Professor Santa Ana College Retired and Ralph E. Shaffer, Professor Emeritus Cal Poly Pomona can be contacted at [email protected]