Prop 8 and Rethinking the Amendment Process

Watching a recent speech by Naomi Klein, I was introduced to a new term: "hope-over." It's that cloudy, spent feeling hovering over this entire week. For me, it is mixed with more than a little nausea.

I spent the four days leading up to the election in Bloomington, Indiana, working with a ragtag team of volunteers to get out the vote. We didn't sleep. We ate bagels three meals a day and had doors slammed in our faces. On Election Night, I drove the four hours to Chicago and celebrated in Grant Park with a quarter million Obama supporters. And I brought all that euphoria home with me.

Then I opened my laptop and checked the late night news.

In three states, Florida, Arizona, and California, same-sex marriage bans were written into the Constitution.

The people of California expressed their anger by protesting, spray painting the sides of churches and railing against Black and Latino voters. Many, myself included, were frustrated with Obama for failing to come out against Proposition 8 early enough, and then only doing so tentatively, stating outright that gay marriage was not something he supported.

But after Election Night and the homophobic hope-over of the past few days, I've taken another look at the results from that night and decided that the state Constitution system itself is flawed.

If you look at the overall ballot measure results from the election, it's a mixed bag: Stem cell research got a leg up, gays got shot down. Affirmative action lost in Nebraska, but the right to abortion was upheld without new limitations in South Dakota, California and Colorado.

This inconsistent record does not indicate that America suffers from multiple personality disorder. Instead, it is reflective of a flawed process for amending state Constitutions.

The Federal Constitution has only ever been amended by requiring two-thirds of the vote in Congress. This deters change, ensures that the document itself stays consistent, and encourages flexibility of definitions within the Constitution to accommodate shifting social realities. This also deters amendments that are too specific, too clearly aimed at degrading one kind of citizen or one kind of practice. It simply takes too many votes to get most pet issues through the amendment process.

Many state constitutions, on the other hand, permit amendments with just fifty percent of the popular vote. That means that even though 49% of Californians believe that the right to marry should apply to LGBT people, the entire state no longer has that right. This lower threshold encourages the random assortment of specific amendments we saw in this election and will see in many elections to come.

A change in the amendment process for states will not always ensure the protection of minority rights. In fact, it might make gay marriage harder to establish in certain jurisdictions. But it will encourage consistency. It will deter attacks on specific rights and groups of people. And it will do much to end regressive political movements that seek to take away rights their Constitution has already granted.

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Comments

[JohnBisceglia]

Does AMERICA really need some basic math skills? 2 + 2 = 4......and­.........

We will NOT pay full taxes for unequal rights. Period. P-E-R-I-O-D.

Taxes = Full Equality. No equality? No taxes.

Sorry - IRS. You will have to find another idiot to tax - THIS American will NEVER allow you to tax me OR punish me for not doing so UNTIL equal. NEVER. Bring it on.

Now go and do your rmath homework, America!

[LeftRight]

That's a great idea, except that you would almost certainly lose based on the fact that technically you are a single person, and single people aren't allowed to refuse to pay their taxes since married people get breaks....­..

I would recommend against trying this, since you would likely go to jail for failing to pay any taxes...

[RallyGrrrl]

It WAS so sad - I wanted to enjoy the Obama victory all week (all day, even), but when I heard about Prop Hate I almost cried. I'm not in a state that allows gay marriage (NJ), but I remained hopeful because as long as there are states like MA and CA, we have a shot.

It's hard to feel proud about the Obama victory with the shame of Prop 8 looming. Just devestating.

[realityczech4u]

It seems logical to me that the further down the structure you get toward the level of the individual citizen the more specifics and flexibility are provided in their governance. I notice that you mention states in the plural. To my knowledge, each state has independently structured for itself how it's constitution is set up and modified. Are you suggesting that this freedom be stripped from the states and that it be dictated by some central authority?

[M1]

Emma Ruby-Sach,

What if a gay couple said that in order to exercise their religion they must get married and complained to the court that California's ban on gay marriage represents a substantial infringement upon their 1st A right to the Freedom to exercise their religion? Is this too far a stretch?


If this theory went up to the US Supreme court and lost it would not be a final blow.

[equalground]

An association with a religious argument would run the risk of imposing church and state restrictions. Retaining the best of both worlds is ideal - civil rights and no ideological restrictions to teach the ideology in the schools, etc.

Although, when the CA Supreme Courts justified the Equal Protection Clause, they did justify the position with the religion argument. Religion and that sexual orientation is "a minority powerless in the political process," which was necessary because the first test for suspect classification of "immutable rights" was not met. Immutable rights being unchangable (ie., from birth.)

The treatment of sexual orientation as, or congruent with, religious treatment would in fact resolve many of the points of contention with religion. But, I don't think Equality California would like the restrictions and will not pursue this course. Likely, they were holding their collective breaths when the CA Supreme Court went there to justify same-sex marriage. Amazing they didn't pass out altogether when they learned from the court they were powerless in the political process.

Nice to chat with you again. Answer to item #2. Powerless in the political process as a substitute for immutable rights, which explains why the Black community is not identifying with the movement.

[erubysachs]

I wanted to take a quick moment to reply to some of the comments:
I would warn against optimism regarding the upcoming court challenges. First, this is a country that is very vocal about judicial activism and the justices of the California Supreme Court will be well aware of that debate. Second, undoing a Constitutional amendment by deeming it a violation of some overall structure is a smart way of getting around the popular vote, but it's a stretch. Keep in mind that equal protection, as an overarching principle in the federal Constitution has not been found to include LGBT rights. Stating that Constitutions “protect minorities from majorities” (a quote from Elizabeth Gill from the ACLU) would mean that the Federal Constitution is also violating a fundamental principle in the interpretation of equal protection.
As a quick response to LeftRight - I didn't include ratification in my description to save words and preserve flow. I hoped it got the point across, but you are of course correct.

[midknightryder13]

Except that there is precedent. Romer v Evans -- the infamous Amendment 2 in Colorado. Now whether or not that could be applied in THIS instance is unclear. (There is alsothe dissent in Lawrence v Texas from the SCOTUS.) Also, there still has to be a determination as to whether or not this would be considered a REVISION of the CA Constitution. If the court determines that would be the correct procedure, then this would be overturned. A revision requires a constitutional convention in CA, anyway.

[realityczech4u]

I am curious as to why you believe the CA Supreme Court will be more cognizant of public opinion regarding judicial activism than they were when they made their recent pronouncement. It would seem the opposite. The law that they blew off had passed by a wide margin of Californians. Prop 8 only made it by a narrow margin. True, Prop 8 is part of the Constitution while the prior was only a law but if the Court has developed a sudden concern for public opinion, it has drifted toward homosexual marriage not in the other direction.

[rockitt]

First to the question of process of making changes to California's constitution. From the American Constitution Society blog http://www.acsblog.org/constitutional-interpretation-and-change-calif-couples-challenge-outcome-on-prop-8.htmll):

"According to the California Constitution, such radical changes to the organizing principles of state government cannot be made by simple majority vote through the initiative process, but instead must, at a minimum, go through the state legislature first. The California Constitution itself sets out two ways to alter the document that sets the most basic rules about how state government works. Prop 8 passed through the initiative process. However, any measure that would change the underlying principles of the constitution must first be approved by the legislature before being submitted to the voters."

Lawsuits have already been filed to invalidate Prop 8 on that basis.

On the larger point, the question should be whether people's rights can/should be put up for a vote (either nationally or at the state level). Whether individual rights are specifically spelled out (e.g, right to free speech) or not (e.g., the right to privacy), rights should NOT be subject to a vote.

My personal view is that I don't require permission for my rights. That may not always help from a practical matter - but it frames the discussion better.

[realityczech4u]

The question arises that if this is so clearly the case, then why was this measure approved to go on the ballot as an initiative without going to the legislature first?

The provision regarding the legislature is a clever one. The general populace has no lobby so the voice of the individual is trumped by that of the lobbyist and unless there is a general public uproar on an issue, the lobby that is the loudest and best funded is the squeaky wheel that gets the grease from the legislators.

[jrockbg]

I know both sides do this but liberals are the ones doing it lately...

Whether its an election, or amendment process, when you guys don't like the result, you want to change the way that result was achieved. That's so disingenuous. It's overtly partisan and it shows great disrespect to fellow voters who simply disagree with you on a political issue.

Imagine every time you won a vote on something, the opposition wants to change the whole system now. You would say hey, we voted, it was fair, thats it! But I don't see that here. It's all whining and sour grapes. If changing the amendment process is something you are truly passionate about, make your arguement in the wake of a close vote that your side actually won. You won't come off as sour grape hypocrites like you do now.

[WestCoastBuckeye]

Your point, as much as I hate what my state has done, does have some validity. A majority of voting Californians made a decision, hateful and petty as it was, and to undermine the will of the populace is something most of us generally frown on, and rightfully so.

However: American history has more than one instance where popular opinion far outweighed the cries for equality by a group of citizens. And the courts have repeatedly ruled on the side of the minority, against majority opinion. The majority having rights unavailable to the minority is unconstitutional; separate, no matter how equal, is inherently unequal. I know some may take offense to the Jim Crow reference, yet the basic principal applies to marriage vs. civil unions.

Prop. 8 may or may not lose due to interpretations of state constitutional process, however we all suspect the inevitable path to equality for American homosexuals lies through the SCOTUS. It's just a matter of when.

An aside: I think Olbermann's "special comment" tonight, while simplistic, was the best argument against Prop. 8 that I've heard yet: as a human being living in a world where true happiness can be so rare, how can you (especially if you call yourself Christian) deny basic happiness for your fellow human being? "Do unto others ... ." How true.

[jrockbg]

I submit that there are certainly many who simply do not like homosexuals and that steers their votes. This is very unfortunate and I hope in time we can change their hearts. But I really think strong civil unions are the key. If I lived in California I would've voted for prop 8. But I also wouldve voted for any reform which would provide rights very similar to marriage for GLBT couples. I think the civil union route also keeps the issue off of the radar of bigoted minds.

[LeftRight]

You are correct, but I will suggest that changing a Constitution should be more than a majority vote. I'm not saying that would be enough to overturn Prop 8, but it should prevent FUTURE changes such as Prop 8!

[Thabor]

Maybe you should wait for the full system to work before you decude it is flawed. Also you need to take a step back and realize most of these measures don't amend the state constitutions at all. The original ban in California certainly didn't. And even this attempt should get struck down by courts. At a minimum it should obviously be a bad idea to push for amending to a 60% requirement while we still have descrimination written into the constitution. Besides if we can't muster a majority to stop something like 8, what makes you think we can get one to change the amendment requirements?

[realityczech4u]

I strongly disagree. There should be some point at which, once the people have spoken, the alleged 'aggrieved' can no longer thumb their noses at them and just enlist a handful of judges to do their dirty work for them.

[Thabor]

There already is one. It is at the point where legislation has been challenged at the Supreme Court level and passed constitutional muster. Unfortunately for you legislation which needlessly discriminates against a class of people doesn't. I suggest you read up on "strict scrutiny" as it is highly relevant to what will happen if this should actually survive long enough to make it to SCOTUS.

From some of your other comments I'd also suggest you read up on the 9th and 10th amendments to the US Constituion. You might also read up the California Constitution which includes bits such as "A citizen or class of citizens may not be granted privileges
or immunities not granted on the same terms to all citizens"

[LeftRight]

This one specifically said that they would be changing the Constitution!

[caterpol]

I'm no legal scholar but I don't understand why this is a state's issue instead of a federal issue. Shouldn't the US Const hold sway when it comes to equal rights? Why should states have any power to discriminate?

[CEKChuck]

It hasn't reached that level of the courts yet. And really, we probably don't want it to yet given the current court makeup.

[LeftRight]

This is a state issue at the moment because the states are the ones which legalize marriage..­...

[buzziea]

Amendments and other hate legislation will always impede gay rights because there will always be hate. Especially towards gays. In the USA that is. Gay people must get our act together and push HARD for our rights. No one will give them to us. And ww must stand up, demand our rights and never back down until we gain full citizen status.

[SevereTireDamage]

I will say this: I think it's absurd that in California, it takes 2/3 to pass a tax, but you can change the Constitution or remove the Governor on a simple majority..­.

[madzippy]

Amending the constitution arguments aside, the issue of rights belong in the courts. The sole purpose of the courts is to administer justice. Fundamental rights should never be subject to the whim of a majority. Minority groups and interests would always lose.

What bothers me about the passage of Prop 8 is somehow the issue of discrimination got distorted into a gay agenda in the schools. What does the act of two consenting adults have anything to do with what is taught in the schools? I was never taught marriage in the school. I understand how some parents may feel -- no parent wants their kid to be gay knowing how bigoted society is and how hard life is. But, denying others of the right to marry isn't going to stop their kid from being gay. It's just going to make life harder if he or she is.

Prop 8 only further isolates and stigmatizes gay people, creating a "they are not like me" caste. Many complain of the "gay lifestyle". Yet the move to marriage, the move to so-called "normalcy" having been denied, what are gay people suppose to do? Do you condemn gay people to a life of being alone?

[Helpcomputer]

The school and church stuff was a smokescreen. The Yes on 8 people (read: Mormons in another state) knew full well that Californians would reject a campaign of homophobia. So they had to flat out lie in their ads to give people a rationale to vote for hate.

The final goal of these people can only be to marginalize gays back into the shadows. If a genetic reason for sexual identity is ever found, you can bet that their next cause will be to mandate a gene therapy "correctio­n."

[M1]

I am going to have a sign put up in my yard that says invalidate prop 8 and maybe some buttons would be good to wear. I think it is good to stay visible so the little more than half of Californians that denied us equality temporarily must look at our faces on a daily basis.

[jamawani]

Not only was Obama's opposition to Prop 8 late -
It was rather convoluted and qualified.

And what has Obama said since Nov 4th?
Nothing.

[M1]

We can do this without President-Elect Obama because we Kieth Olbermann on our side:).

[realityczech4u]

What do you expect him to say? He's already made it clear that he does not approve of gay marriage at the federal level which, as President-elect is his bailiwick. He shouldn't even comment on a state matter one way or the other. Not even Illinois. He is currently a senator at the federal level. Marriage in Illinois is the business of the state government and constitution. The U.S. Senate has no say in the matter.

[LeftRight]

Actually, to amend the US Constitution requires more than 2/3 of the Congress. It requires either 2/3 of the Congress, OR 2/3 of the states, AND then 3/4 of the states must approve of the amendment, either through voting or through the state legislatures.