Initiative Process Is Being Abused

Wednesday, July 2, 2008

Page 7

IN MY OPINION:

Initiative Process Is Being Abused

BY JACK ROSENFELD

The pending petition to the California Supreme Court (Bennett v. Bowen (No. S164520)), seeking to remove the marriage initiative from the November ballot, is about much more than the right to marry. This case is also about the use and abuse of the voter initiative process. This case gives the Supreme Court the opportunity to reiterate that “voters can propose amendments to the Constitution that will be placed on the ballot if the requisite number of signatures are obtained, but they may not propose constitutional revisions.” (Californians For An Open Primary v. McPherson (2006) 38 Cal.4th 735, 788, conc. opn. of Moreno, J.)

For decades, the voter initiative process in California has been exploited to inflame the electorate. This problem will persist until the Supreme Court clarifies the scope of the initiative process.

In 1978, California voters were presented with the Briggs Initiative (Proposition 6), a patently unconstitutional measure which sought to prevent homosexuals from working in California public schools. At the time, the Briggs Initiative was compared to the 1930’s Nuremberg era laws, which banned Jews from working for the German state or from being employed as lawyers, doctors or journalists. Although it was defeated, the Briggs Initiative should not have been placed on the ballot and that political battle should not have been fought.

In 1986, the voters were presented with Proposition 64, backed by Lyndon LaRouche. That failed initiative would have quarantined Californians who are HIV-positive. That measure targeted a vulnerable minority during a time of hysteria about AIDS and would have deprived hundreds of thousands of people of their liberty, even though public health officials viewed quarantine as unnecessary.

In 1991, there was a notable exception. The City of Riverside refused to place an anti-gay citizens’ initiative on the ballot. The proponents sued. The trial court upheld the City’s decision, ruling the proposed initiative was constitutionally defective and also represented an impermissible effort to amend the City’s charter by ordinance. The Fourth District affirmed, observing “All that is lacking is a sack of stones for throwing.” (Citizens for Responsible Behavior v. Superior Court (1991) 1 Cal.App.4th 1013, 1031.)

In 1994, we were presented with Proposition 187, a ballot initiative which, among other things, would have denied public education to undocumented children. That measure was patently unconstitutional, in that the U.S. Supreme Court previously had held that denial of free public education to undocumented children amounts to a violation of equal protection under the 14th Amendment. (Plyler v. Doe (1982) 457 U.S. 202.)

More recently, we were confronted with Proposition 22 in 2000, which unlawfully denied same-sex couples the fundamental right to marry. Next up is the proposed marriage amendment on the November 2008 ballot, seeking to abrogate that same fundamental right.

In our constitutional democracy, equal protection and fundamental rights of a protected minority, including the right to marry, cannot be curtailed by a mere ballot initiative. Otherwise, the people could seek to adopt initiatives barring Jehovah’s Witnesses from doing door-to-door proselytizing, or barring Muslim girls from wearing headscarves in public schools, or barring placement of foster children with gays and lesbians, or requiring Christian prayer in public schools. The possibilities for mischief are endless. Even if ultimately unsuccessful, such initiatives are deeply divisive and costly to oppose, a point noted in Citizens for Responsible Behavior (1 Cal.App.4th at p. 1023).

If allowed to proceed, the marriage initiative would destabilize California’s constitutional structure by allowing a popular vote to abrogate the now established fundamental right of same-sex couples to marry. Such a profound restriction on a fundamental right demands, at a minimum, the scrutiny and deliberation of the constitutional revision process. This voter initiative, seeking to deny same-sex couples the fundamental right to marry, amounts to electoral “ultra vires.”

(Jack Rosenfeld is an attorney in Los Angeles. The views expressed are solely his own.)