An uncivil proposition

If opponents of same-sex marriage thought Proposition 8’s passage by a four-point margin would be the end of the matter, that illusion was quickly shattered in aftermath of the November 4 election. Supporters of marriage equality have taken to the streets in Sacramento, around California and across the nation to insist that marriage is a civil right that shouldn’t have been subject to the whim of the voters.

“The argument is not about gay marriage,” said Therese Stewart, chief deputy city attorney for San Francisco. “It is about protection of minority rights.”

Stewart ought to know. Last spring, she was one of the attorneys who successfully argued in favor of marriage equality before the California Supreme Court. The combined lawsuits, officially titled In re Marriage Cases, were decided by the court last May, when it overturned Proposition 22 and decreed that same-sex couples had a constitutional right to marry. Stewart also personally participated in the flurry of weddings following the court’s decision, marrying her partner in September.

The day after the election, she filed a brief on behalf of San Francisco before the state court asking that Proposition 8 be struck down. The suits claim the proposition, by removing rights from a minority group, violates the state constitution’s equal-protection clause. Instead of amending the constitution, as its proponents advertised, the initiative revises it, and that’s a vital distinction. Under California law, a revision to the constitution can only be placed on the ballot by a two-thirds vote of the state Legislature; only minor amendments can be made by the initiative process.

“Equal protection under the constitution should be the judiciary’s last word,” Stewart told SN&R. “In order to change the constitution this fundamentally, there needs to be a more cumbersome process than simple majority vote in order to protect the minority.”

Prop. 8 passed by a simple majority: 52 percent in favor, 48 percent opposed.

On November 9, Stewart told a rally of several thousand marriage-equality supporters on the west steps of the Capitol she’s confident the court will invalidate the initiative. “Here’s the question I’ve seen on some signs today,” Stewart said. “Why should civil rights be subject to a majority vote?” That’s what Stewart plans to ask the state’s high court, and she is confident marriage equality will be upheld as the law of the land.

If Prop. 8 stands, it could set an ugly precedent. Anyone with deep enough pockets to fund a signature-gathering campaign could target the civil rights of any minority group for elimination. Any prejudice—religious, political, racial or ethnic—could be leveraged to eliminate equal protection for an unpopular group. When asked why the courts allowed what appears to be a patently unconstitutional initiative on the ballot, Stewart explained that’s not how the judicial system works.

“The courts almost never take anything off the ballot,” Stewart answered. “That’s just not the way they do things.” The court interprets law that has already been made. Since the proposition had not yet passed and would not have become law if it had failed, the court can’t rule prior to the election.

However, now that the initiative has passed, it’s open season. Stewart’s brief contends the court should invalidate Prop. 8 because “the initiative power does not permit voters to divest a politically unpopular group of rights conferred by the equal protection clause.”

California’s Constitution enumerates a number of rights to which all people are entitled. It reads, in part: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”

In addition, the 14th Amendment to the U.S. Constitution includes an equal-protection clause that prohibits the states from denying any American equal protection under the law. The equal-protection and due-process clauses of the amendment have been instrumental in advancing equality and the right to privacy in the United States.

Once an initiative is approved by voters and becomes law, it is still subject to judicial review and interpretation, as is any law adopted by the Legislature. Many voters are unaware that such amendments by initiative have been overturned by the courts in the past. For example, in 1964, in response to a bill that prohibited racial discrimination in housing, voters approved Proposition 14 by a 65 percent vote, which amended the California Constitution to allow such discrimination to continue. The amendment was declared unconstitutional and invalidated by the U.S. Supreme Court in 1967.

“No matter what happens in court, we still need to change hearts and minds,” Stewart said. “We need to educate people about civics.”