State justices speak to people's initiative power

Justices of the California Supreme Court seemed reluctant today to override the will of the people as expressed by  the narrow majority vote to effectively ban gay marriage with Proposition 8.

Before supporters of the November ballot measure even got their chance to speak to the court in San Francisco, the  justices appeared to be warning Proposition 8 opponents that their arguments that the vote should be invalidated could be viewed as an excessive use of judicial power.

The state Constitution talks about "the great power of the people" and their right to amend the guiding principles, said Justice Joyce L. Kennard. "As judges, our power is very limited. We would like to hear from you why this court can willy-nilly disregard the will of the people to change the Constitution."

Chief Justice Ronald M. George observed that the court's decision on whether Proposition 8 deprives gay citizens of an inalienable right "is going to have implications for future efforts if everything that could conceivably be characterized as an inalienable right is outside the people's initiative power."

Former Whitewater special prosecutor Kenneth M. Starr, representing the backers of Proposition 8, opened his hourlong argument to the  court with the insistence that "the right of the people is inalienable to control their Constitution through the initiative process."

Justice Ming W. Chin asked Starr if the people of California have the right to change their Constitution in a way that violates the U.S. Constitution.

Pointing to the late Justice Stanley Mosk's criticism of the re-institution of capital punishment as "macabre," Starr replied that "the people do have the raw power to define rights."

-- Carol J. Williams

Photo: California Supreme Court Chief Justice Ronald George speaks during arguments on the constitutionality of Prop. 8. Credit: Paul Sakuma

Prop. 8 photo gallery

Comments

[Joe of Hollwood]

In the event that another voter approved ballot initiative in the future overturns Prop 8, Mr. Starr's comments here: "the right of the people is inalienable to control their Constitution through the initiative process." may come back to haunt him.

[Carla]

So it's not enough that we have politicians deciding our fates based on their desire to be popular (and reelected); now we judges doing the same thing? Worried about how they'll be perceived? Oh, brother!

Think how egregious the situation would seem if you went back and read the article substituting "black" or "African American" for "gay" and "interracial marriage" for "gay marriage." It would fly flagrantly in the face of the Equal Protection Clause.

"People's initiative?" Was this valid in the days that blacks were enslaved and could be killed if they ran away? This was popular thinking in the Southern states back then. Does the fact that it was the majority view really make it OK?

Yeesh!

[Clay Landon]

Ken Starr believes a simple majority of citizens can define rights. I bet the KKK is disappointed that Starr wasn't alive when equal rights for blacks were being debated.

My thoughts and prayers are with the Pepperdine Law School where Ken Starr is dean. God help them.

[Rick DeLano]

Lookin mighty good here.

They might be activist judges, but they are, after all, judges.

And judges typically decline opportunities to go Bolshevik based on Governor Moonbeam's Fairy Tale Argument.

Thank God, looks like we won Prop 8 against stupendous odds.

If the other side would care to try for a rematch, please believe me when I tell you we will be happy to discuss it woth you then.

Only marriage between a man and a woman is valid and recognized in California.

[Jonny Mack]

Pointing to the late Justice Stanley Mosk's criticism of the re-institution of capital punishment as "macabre," Starr replied that "the people do have the raw power to define rights."

Does he mean like when the majority vote allowed slavery to continue, or in it's wake when they imposed regulation segregating black from whites and imposing a tax on polling places? That's the whole reason we have protections in the constitution, to protect the individual in the minority from the defamation of the majority.

[Jonny Mack]

Pointing to the late Justice Stanley Mosk's criticism of the re-institution of capital punishment as "macabre," Starr replied that "the people do have the raw power to define rights."

Does he mean like when the majority vote allowed slavery to continue, or in it's wake when they imposed regulation segregating black from whites and imposing a tax on polling places? That's the whole reason we have protections in the constitution, to protect the individual in the minority from the defamation of the majority.

[Twan Williams]

I don't see what all the fuss is about. The people of California voted to ban same sex marriages and that is it. Being gay is a lifestyle choice and not a racial issue. If you are gay and feel like your being treated like a second class citizen you should leave the state and the country and look for a place that will give you what you want. In a democracy you cant always get what you want.

[Rogert Talbot]

Proposition 9: Marriages performed in Mormon temples are not recognized as legal by the State of California.
Proposition 10: Jews cannot live in Orange County.
You see, one thing leads to another. We're heading back to the birth of Nazism a la 1930.
I will never agree that my marriage licensed legally by the State of California can be invalidated! Otherwise, who's to ever trust the State of CA again? This would prove that we live in anarchy that can be bought by Mormons, Catholics, and OC evangelical bigots.
No minority will be safe from the majority in CA again.
Today it is gays. Tomorrow it just as easily be Mormons.

[Tim]

The hesitation of the judges to be perceived as overturning the will of the people is proof enough that they are not fit to serve. They need to be recalled and replaced with judges who understand the difference between mob rule and the rule of law. This matter won't be resolved until it's brought before the U.S. Supreme Court. The will of the majority to deprive the rights and protections of a minority flies in the face of everything this country stands for. This is a sad day for California.

[Anonymous]

It is religion that is the root of this issue, as such it is with so many other things in this world.

[Amy]

There's never been a better example of why California should abolish this stupid initiative process.

And tne answer to Justin Chin's question is a resounding NO - state and local governments are free to grant greater rights than those afforded by the US Constitution, but they are prohibited from acting in ways which violate the US Constitution. Prop 8 is a clear violation of the Equal Protection Clause, and may violate the First Amendment as well.

However, the justices don't need to (and shouldn't) reach that issue, as this case can be decided on state law grounds -- Prop 8 went beyond the scope of the initiative process, as such action must come from a legislative super-majority (which, thankfully, these ignorant hatemongers will never achieve).

[R.Scott]

In times of injustice and oppression, we look to our justices as the last defenders of equality.

[Heather]

You may ban gay marriage but that doesnt mean gay people will dissapear. This is only making us stronger and coming together. You will see more of us out and in your face. If you dont like gay marriages, then DONT GET ONE. There are plenlty of straight people that are married that are abusive towards each other, and you allow that. Why dont we concentrate on the kids over dosing on drugs, killing each other with guns in the school, the distroyed economy, and the thousands of men and woman over seas. Just leave it alone, we will eventually win, and there will nothing you can do about it.

[Sandra]

If this isn't mob rule, what is?

[Justin]

This is not looking good for gay marriage supporters

[Giancarlo]

Being gay is not a "lifestyle choice". It's a sexual orientation. Some of you ought to do more reading before you post comments on here. Second, if the justices side with democratic rights they will overturn this proposition. The majority cannot define the rights of a minority. That's tyranny of the majority... perhaps some of you ought to do some reading into political philosophy?

[George]

How about the right to grow and use medical marijuana? That's legal in CA but illegal in the USA as a whole. Why in some instances is it ok to support to US Constitution and other times it is not ok. Is it our right to pursue happiness or not?

[Tracy Hall Jr]

I am astonished that the whole issue of "suspect class" isn't up for review. There is a fundamental difference between attraction and action. It is not wrong to experience attraction to the same sex. What is wrong is to give in to that urge. Why does society not understand the difference?

Homosexuals -- those who yield, of their own free will and choice to their urges -- are no more a "suspect" class deserving of special rights than are fornicators, adulterers, alcoholics, or drug addicts. The right to the "pursuit of happiness" does not give us the "civil right" to act out all our animal urges.

The fact that this issue is not up for debate tells me that homosexuals already consider this battle won and will not rest until they have destroyed the freedom of religion and the freedom of speech of anyone who dares to call the behavior of this newly-minted "suspect class" a sin.

hthalljr'gmail'com

[MadcapMagician]

so let me see here if a law is in your way to doing what you wan, when you want, just go running and crying to the courts saying your "rights" are being violated... hmmm interesting idea here... lets flood the courts with meaningless law suits so they cant tackle real issues such as putting murderers to death, thieves in prison, or other usefull things such as actually upholding the laws we have. or better yet lets just over turn the majority of the VOTING public's will just because you don't like it...
sounds like a bunch of spoiled children throwing a tantrum because they couldn't get a new toy.
The courts need to tread extremely careful with the ruling they make here. If they do negate the will of the voting people, it will mean that the very thing that makes this nation the best place to live.. your RIGHT to vote will be meaningless because your vote can be tossed out by activist judges ... then where does that leave us....in a precarious position of not being able to trust the courts, not putting forth new legislation to be voted on for fear some fringe group might claim discrimination, where this kind of situation leads to... who knows, but its time for EVERYONE to quit claiming they are discriminated against based on their choices in life... iImean hell a killer chooses to kill his victims, that doesn't mean its a right = /.. if law is there to address a particular situation then let the law stand,let it work, if the will of the people decide to change the laws, let the system work....

and besides as the liberals like to point out with the presidential election "WE WON" that's the case here, the gays and lesbians didn't get the vote out.. they didn't have enough votes to overcome the MAJORITY of the voters that did vote.. so too bad deal with it.

[Jim]

If you think this is going away, your sadly mistaken. It's only started. Judges should remember this when election time comes around.

[Laura Johnson]

Rick said:

"Thank God, looks like we won Prop 8 against stupendous odds."

So if all atheists get together and put a ballot on the measure forbidding Christians to marry and it passes, that's alright by you? You wouldn't take that to court? LOL!

"Marriage is between atheist men and women only. All other marriages to be annulled by the state, because we said so."

Nice going.

BTW, I would not count your chickens before they hatch. We'll just put it right back on the ballot in 2012. Your odds of winning then will be way down, since your precious special-rights-for-heterosexuals measure only passed by 52% this time.

[john]

To those trying to equate gay marriage to the rights of interracial couples to marry, I believe you are confused as to what the definition of marriage actually is. Marriage has been traditionally defined in western culture for over a thousand years as the basic framework for setting up a family to raise children. Thus, a human male and a human female marrying does not concern itself with race per se. Saying that a man and another man can marry is NOT in the same vein as arguing for interracial marriage.

You trying to cloud the issue by mixing rights into this argument smacks of trying to force people to ACCEPT the gay lifestyle as a legitimate way to compliment traditional couples in our society rather than just demanding people TOLERATE the gay lifestyle. I have nothing against gay people, but i do not accept their way of life in the same way i accept heterosexual couples as a foundation for society. I have my reasons, and they are not emotional or religious. Please dont assume conservative people are acting out of ignorance. If you want to convince me that gay marriage is ok, back up your argument with something more than implying im a bigot.

[mike licavoli]

One thing you can say for sure, upholding Prop 8 will not harm the future of gays progencies.

[Anonymous]

If the gays win this no one is safe. The pedophiles will push their agenda and with stacked courts the people can do nothing. This state will lead to vigilante justice. Be careful about overruling the will of the people... gay dictatorship is on its way.

[thomasAlex]

Only and Ignorant Heterosexual would believe that being Gay is a lifestyle by choice. It is no more of a lifestyle than being Heterosexual is. Nature proves that you cannot have it one way, if it was a choice for Gays then It's a choice for Straights. Get over your bigotry and read a book sometime!