After reviewing the oral arguments before the U.S. Supreme Court in the legal challenge to Proposition 8, it is clear that those who would deny marriage equality to LGBT Californians have given increasing prominence to one argument in particular: Courts should not intervene to overturn Proposition 8 because to do so would interfere with routine democratic processes.
Like the other spurious claims they have made throughout the legal process to date, this argument is deeply flawed. To accept this argument is to ignore two key facts. First, a key function of our nation's courts is to protect individuals -- particularly members of historically disadvantaged minority groups -- from unfair discrimination and to provide equal access to fundamental rights like the right to marry.
Second, Proposition 8 does not promote access to democratic institutions but rather eliminates the ability of elected officials to enact marriage equality by simple legislation -- precisely the opposite of how a properly functioning representative democracy should work. Because Proposition 8 was enacted by initiative as a state constitutional amendment, under California law, the only way to repeal or amend it is with a new initiative.
As a result, even though the California electorate has elected a legislature, an attorney general, and a governor that all favor marriage equality, our ability to enact legislation to reflect the views of a substantial majority of Californians who support marriage equality has been eliminated. Even with majority support, a new initiative will require massive organization and tens of millions of dollars -- a financial and political burden that a historically disadvantaged minority group should not have to shoulder simply to pursue equal rights.
Proposition 8 does not promote the values of compromise and deliberation through our states elected democratic institutions. Rather, it imposes a large and expensive political barrier to achieving basic rights and equality for a small and historically disadvantaged minority group.
As the brief I filed in the U.S. Supreme Court argues, the Court has a track record of protecting historically disadvantaged minorities from laws like Proposition 8 that interfere with their access to political processes. The brief, authored by Laura Brill of Kendall Brill & Klieger LLP and joined by 22 prominent law professors from across the nation, shows how Proposition 8 is interfering with the ability of elected officials in California to create marriage equality on behalf of their constituents, and it debunks the proponents' arguments that Proposition 8 has grounding in the political traditions of our country.
Contrary to what the proponents have argued, the initiative process provides less room for deliberation, accountability, or change than an enactment by a legislative body. A legislature can debate an issue; with an initiative, the electorate is given only an up-or-down vote, without any ability to propose amendments.
Moreover, unlike our elected officials, initiative proponents are entirely unaccountable to the public. They were never elected to public office. They do not face reelection or term limits or recall. They take no oath of office and have none of the requirements of transparency in their deliberations that our state properly requires of elected officials. Despite this, it is the unelected initiative proponents who are pursuing Supreme Court review and insisting that Proposition 8 be upheld, contrary to the popular sentiment.
Proposition 8 represents a departure from our nation's core values, both in its effect and in its process. The Founders created a framework within the Constitution that explicitly protects the rights of the minority by ensuring their interests are represented in the legislature, where their representatives can work with the majority to protect their interests. As James Madison put it in Federalist 51, part of the function of a legislature is to guard "one part of the society against the injustice of the other part"; he warned that where, "a majority be united by a common interest, the rights of the minority will be insecure." With an initiative like Proposition 8 in place, supporters of marriage equality have been denied their right to traditional representation.
The briefs have been filed. The oral arguments have been made. We await the Court's decision. But let's be clear: If a voter initiative can deny LGBT people access to traditional representative democratic processes, then in California, any other small, historically disadvantaged minority group can also be denied the right of traditional representation. In a state as diverse as California, virtually every one of us has reason to fear if this is the case.
This piece was originally published in Capitol Weekly.
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