Proposition 8

First They Came For the Gay People...

Joe Mathews — Thu, 28 May 2009 19:01:00 -0400

Your blogger, whose favorite flavor is schadenfreude, has been amused as all sorts of people realize -- in the wake of the supreme court's decision upholding Prop 8 -- just how powerful and inflexible California's ballot initiative is, and how easy it would be for a majority to infringe on the rights or prerogatives of others.

But my favorite reaction so far comes from the atheist community, via The American Chronicle. Michael Doss, the California director of American Atheists, is quoted as saying of the decision: "Today, same-sex couples lost the right to marry via a citizen-driven ballot initiative. If one minority group can lose rights this way, there's very good reason to believe that any other, including atheists, could be next."

Well said. Do not fear God. Fear the initiative process.

The California Supreme Court Offers A Suggestion for Constitutional Convention

Joe Mathews — Tue, 26 May 2009 18:58:00 -0400

The California Supreme Court's decision today to uphold Prop 8 is more about the California constitution and the initiative process (the true winner in the case) than it is about same-sex marriage. In effect, by a 6-1 vote, the court makes plain that it would have loved to overturn Prop 8--but couldn't because of the constitution.

And in the following passage from today's decision, the court seems to offer a suggestion to advocates of a constitutional convention: that the state needs provisions limiting the ability of the people to change certain parts of the constitution by initiative. The political problem with this is, of course, that advocates of such a convention desperately want to avoid having issues like same-sex marriage brought into the debate over a convention.

Anyway, here's the relevant passage:

"The constitutions of a number of other states contain express provisions
precluding the use of the initiative power to amend portions or specified
provisions of those states' constitutions (see, e.g., Mass. Const., amend. art.
XLVIII, pt. II, § 2 ["No proposition inconsistent with any one of the following
rights of the individual, as at present declared in the declaration of rights, shall be
the subject of an initiative . . . petition: [listing a number of rights, including the
rights to just compensation, jury trial, and protection from unreasonable search,
and the freedoms of speech, assembly, and of the press]]; Miss. Const., art. 15,
§ 273, subd. (5) ["The initiative process shall not be used: [¶] (a) For the proposal, modification or repeal of any portion of the Bill of Rights of this Constitution"].) In contrast, the California Constitution contains no comparable limitation. In the absence of such an express restriction on the initiative power, and in light of past
California authorities, we conclude that the California Constitution cannot be
interpreted as restricting the scope of the people’s right to amend their
Constitution in the manner proposed by petitioners.

Prop 8 Decision: A Word and a Question

Joe Mathews — Tue, 26 May 2009 16:57:00 -0400

I've just completed a very fast reading of the California Supreme Court decision this morning that upholds the Prop 8 ban on same-sex marriage -- and also upholds the legality of the approximately 18,000 gay couples who got married in the state last year.

As readers of this blog know, I'm a strong supporter of same-sex marriage -- but I think the court did the right thing. The California constitution is different than the U.S. constitution. The people have strong powers to change the constitution through the ballot initiative. To overturn Prop 8 would have forced the justices to rewrite the state constitution and strip the people of those powers. I believe that California's initiative process should be less powerful and more flexible, but this wasn't the case to do something about it.

The decision makes plain that Prop 8's effect is confined to one word; marriage. The court writes that gay couples must continue to have all the rights and responsibilities of married couples. But their unions can't be called marriages, because of Prop 8.

Now, here's a question for same-sex marriage supporters, who quite rightly will now turn to drafting and qualifying an initiative for either the 2010 or 2012 ballot that would overturn Prop 8. What will be in your initiative? Specifically, same-sex marriage supporters would be wise -- politically and as a matter of policy -- to include strong language in their initiative protecting religious freedom. No church member or clergy member should be forced to change their faith in any way as a result of legalization of same-sex marriage. Including such a provision would not only be the right to do but also it would be smart politics. Prop 8's supporters fanned fears that legal same-sex marriage would infringe on how people practice their faith. An initiative to overturn Prop 8 should take that argument away.

Prop 8 Decision Tuesday

Joe Mathews — Fri, 22 May 2009 15:28:00 -0400

The California Supreme Court just announced it will rule on legal challenges to Prop 8, the California initiative ban on same-sex marriage, on Tuesday.

The Subject I've Been Trying to Avoid

Joe Mathews — Fri, 15 May 2009 15:41:00 -0400

You may have noticed that your blogger has been ignoring the hottest direct democracy story in the country: the controversy over Miss California's remarks in opposition to same-sex marriage (and thus in favor of the Prop 8 ban) in her home state.

Your blogger thought of posting on this subject, but worried it might seem like a cheap stunt to drive traffic (like the bloggers who add "Britney Spears" to the topics lists on their posts). Or a desperate bid for attention. Or that some might think that the picture of a beauty pageant queen had no place on the web site of a serious think tank.

But sometimes, the direct democracy news demands what the direct democracy news demands. And so I've waded into the tabloid swamp, via this item at Fox & Hounds Daily.

Also, I feel I must offer one unrelated bit of political analysis to deepen public understanding of Miss Prejean's ballot initiative stance. While your blogger strongly disagrees with her on Prop 8, her position is quite understandable, geographically speaking. The media organizations covering this public controversy have overlooked the important fact that she is from the San Diego area, which has been the unofficial headquarters of the same-sex marriage opposition in the state. Churches there provided much of the institutional support for the Prop 8 campaign.

Word of Warning: Don't Expect to Watch Prop 8 Hearing On Internet

Joe Mathews — Thu, 05 Mar 2009 02:58:00 -0500

The California Supreme Court hears the challenges to Prop 8 tomorrow morning. And you may have heard that Cal Channel, which broadcasts government hearings, will show the hearing live on its web site.

But as someone who has long experience with Cal Channel, don't count on being able to access that video. Cal Channel is a small operation that is decidedly not ready for prime time. This year's State of the State address -- an essentially meaningless speech that few cared about -- was a minor disaster, with the Internet feed going in and out. It's a good bet that Cal Channel's servers will be quickly overwhelmed by interested parties. Cal Channel's web site has already posted the following warning: "Due to the high demand we expect for this event, if you have problems connecting then the server has reached its limit. Please try back later and watch the video in our archive when it concludes." D

If you want to see it, you're better off looking for it on TV (check your cable provider in California for those who have Cal Channel). Expect some cable news channels to show parts of it.

Lighter Blogging This Week

Joe Mathews — Mon, 02 Mar 2009 17:10:00 -0500

I'm out of California this week and not monitoring direct democracy with my usual fervor. The goal is to get some writing done. Sad to miss Thursday's oral arguments before the state Supreme Court on the legal challenges to Prop 8, California's same-sex marriage ban. I'll weigh in when I'm back next weekend.

Bill Clinton Runs Afoul of "No on 8"

Joe Mathews — Fri, 13 Feb 2009 17:37:00 -0500

President Clinton is scheduled to give a speech Sunday in San Diego to something called the International Franchise Association. Bad move. The location of the speech is a Hyatt hotel that has been the subject of a boycott by the No on 8 folks (that is, supporters of same-sex marriage) since the hotel's owner gave to the Yes on 8 campaign during last year's initiative campaign. The Courage Campaign, a progressive group with an an active Internet organizing operation here in California, is sending out emails and petitions urging Clinton to cancel the speech. Labor unions, which have been battling the hotel, also are boycotting.

Judge: Initiative Donors Must Be Disclosed

Joe Mathews — Fri, 30 Jan 2009 16:51:00 -0500

A federal judge has ruled that the names of Prop 8 donors have to be disclosed, turning aside a legal challenge that argued that disclosing the donors would subject them to harassment.

Prop 8 'Donor Privacy' Argument Gets Another Road Test -- In Nashville

Joe Mathews — Mon, 19 Jan 2009 18:15:00 -0500

Who is the next victim of the ugly campaign for and against Prop 8? Perhaps immigrants who don't speak English and live in middle Tennessee.

Backers of Prop 8 have gone to court, saying that public finance disclosure rules was a threat to the security of their financial supporters. The same argument has now surfaced in Nashville, which is in the middle of a campaign over a citywide English-only ballot initiative. Backers of the initiative have refused to comply with financial disclosure rules, saying that such disclosure would subject backers to intimidation. This is nonsense, and shows a lack of respect for the law that the courts must stop--now-- and that the voters should punish.