Goobergunch Political Report

By now, it’s not exactly news that the California Supreme Court has, in a 6-1 opinion, upheld the legality of November’s Proposition 8, which removed the right of same-sex couples to marry in the state. The most deeply troubling part of this opinion, at least in my mind, was the part holding that amendments restricting fundamental rights are permissible under the existing California Constitution (notwithstanding any federal intervention). Unfortunately, this is merely a symptom of a larger problem impacting California. The state has become ungovernable, due in significant part to the ability of anybody with a spare couple million dollars to put a legislative question directly to a public that generally doesn’t have the time to sit through a few dozen pages of legal text. With the ethical standards of modern ballot campaigns, this can result in people voting differently from how they would with a proper understanding of the given ballot measure.

Proposition 8 isn’t a bad example of these campaign practices. While the No on 8 campaign was disorganized and somewhat incoherent in its message, the Yes on 8 campaign had its act together. Notably, they informed voters that legal gay marriage would impact public schools, leading to teachers telling their students about same-sex marriage being equivalent to opposite-sex marriage. While I wouldn’t have a problem with this, there’s also nothing in In re marriage cases requiring this. I don’t know how much of an effect the well-organized Yes on 8 campaign ultimately had, but with the final margin on passage being only about six hundred thousand votes, it wouldn’t have taken much to have been the decisive factor.

The good news is that most substantive same-sex marriage rights have been retained post-8. On page 37, the Strauss ruling holds that

Proposition 8 reasonably must be interpreted in a limited fashion as eliminating only the right of same-sex couples to equal access to the designation of marriage, and as not otherwise affecting the constitutional right of those couples to establish an officially recognized family relationship.

Indeed, California remains one of four states to grant strict scrutiny to discriminatory statutes against homosexuals. I’d argue that existing prejudice against homosexuals, combined with current political influence levels, should qualify under my reading of Carolene Footnote Four. But of course, that’s not for me to decide, and Justice Kennedy rather dodged the issue in Lawrence v. Texas.

Since this is California, the next step in overturning Proposition 8 is obvious — put together a new ballot measure that strikes out the added language from the state Constitution. I fully expect a ballot measure to this effect to appear on the 2010 ballot. Due to favorable demographic changes, a majority of state voters should favor marriage equality in the very near future, especially if the campaign supporting it is competent. In the long term, however, California needs structural change in its government. On page 13 of its ruling today, the California Supreme Court noted (citations omitted):

If the process for amending the Constitution is to be restricted—perhaps in the manner it was explicitly limited in an earlier version of our state Constitution, or as limited in the present-day constitutions of some of our sister states—this is an effort that the people themselves may undertake through the process of amending their Constitution in order to impose further limitations upon their own power of initiative.

We should do this, preferably as part of a larger process to reform the problems that are removing California’s ability to govern itself.