Prop. 8's Mob Rule

by John M. Curtis
(310) 204-8700

Copyright November 9, 2008
All Rights Reserved.                    

           California’s Prop. 8, amending the state’s Constitution to ban gay marriage, passed Nov. 4 [52%-48%] proving mob rule prevails in California.  When the state Supreme Court voted [4-3] May 16 to overturn Prop 22, the 2000 ballot initiative that defined marriage as contract between a man and a woman, it did so with exhaustive legal reasoning.  California’s High Court echoed Massachusetts’ High Court that ruled Nov. 8, 2003 that there was no legal basis to deny gays the right to state marriage, ordering the legislature to comply within 160 days.  On May 17, 2004, Massachusetts began conducting gay marriages.  Justices of the nation’s High Courts are bound by sound constituional principles, not mob rule or time-honored religious traditions.  Like Massachusetts, California’s High Court concluded that banning gay marriage violated the 14th Amendment’s Equal Protection Clause

            No matter what the impassioned arguments opposing gay marriage, they lack the legal basis to justify discrimination denying gays the right to public marriage.  Marriage, after all, is not a religious contract but simply a legal one between consenting adults.  Massachusetts’ High Court ruled that banning gay marriage created as separate-but-equal class expressly forbidden under the landmark Supreme Court ruling, Brown v. Board of Education.  Opponents to this reasoning argue that Brown applied only to racial discrimination.  Massachusetts’ and California’s High Court concluded that there can be no distinction under Brown between discrimination based or race, gender or sexual orientation.  Whether a majority as in the case of Prop 8 decides to outlaw gay marriage they can’t reverse the legal precedent and principle prohibiting discrimination based on race, gender or sexual orientation.

            Opponents of gay marriage argue that liberal judges legislate from the bench, imposing their will on majority rule.  U.S. Constitution expressly guards against mob rule, protecting minority rights.  California’s initiative process is fundamentally flawed, permitting majority rule to trample on minority rights. Prop 8 displays this flaw where the High Court already ruled carefully that Prop. 22, defining marriage narrowly as between a man and a woman, was unconstitutional. Now the initiative process creates the tautology, or circular reasoning, allowing majority rule  to, once again, contradict the federal Constitution.  California legislators need to amend the state to prevent the initiative process from the abuse of mob rule.  An estimated $40 million was spent by opponents of gay marriage, $20 million from the Mormon Church, to undue a carefully considered High Court decision.

            California’s legislature should debate and refine the initiative process to prevent future propositions from getting overturned by the courts.  Religious institutions, like the LDS Church, have a right to protest immoral practices.  What they don’t have a right to do is subvert the California legal system that defers to the state’s highest court.  “It is my belief that the courts will hold that these same-sex marriages entered into are valid,” said Atty. Gen. Jerry Brown, agreeing to defend Prop 8 against legal challenges without imposing on “the marriages contracted during the time that the same-sex marriage was the law of California.”  Brown needs to defend the High Court and state Constitution not a mob-rule ballot initiative that deliberately went against the May 16 ruling Prop. 22 as unconstitutional.  As the state’s chief law enforcement officer, Brown needs to advise the legislature on the legality of the initiative process.

            Marriage as defined by the state cannot discriminate against individuals on the basis of sexual orientation.  Marriage certificates have legal authority with respect to determining property rights and other benefits, health and property-casualty benefits.  “A major purpose of the Constitution is to protect minorities from majorities,” said American Civil Liberties Lawyer Elizabeth Gill, recognizing the fundamental inconsistency and flaw in California’s initiative process.  Under current law, if Prop. 8 gets reversed in the courts, it will meet the same fate as Prop. 22.  In current system, there’s no end in sight to legal challenges and new propositions.  Atty. Gen. Brown and both legislative houses must fix the current flaw that permits mob rule with unconstitutional propositions.  You can’t call something constitutional by simply getting a majority vote that ignores legal precedent and the U.S. Constitution.

            California faces an unavoidable day of reckoning with its ballot initiative process.  Atty. Gen. Brown and the legislature must go back to the drawing board and fix the problem.  What was meant to preserve direct democracy now threatens democracy by allowing mob rule to undermine the courts.  “If allowed to stand, Prop. 8 so devastates the principle of equal protection that it endangers the fundamental rights of any potential electoral minority,” said San Francisco City Atty. Dennis Herrera, restating precisely what the Calif. Supreme Court ruled May 16.  Church and other lobbying groups have every right to disagree with Supreme Court rulings.  They have the power to discriminate within their organizations against what they deem immoral acts.  What they don’t have a right to do is ignore the High Court, rewrite the Constitution and impose their will on California residents.

John M. Curtis writes politically neutral commentary analyzing spin in national and global news.  He's editor of OnlineColumnist.com and author of Dodging The Bullet and Operation Charisma.

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