Mob Rule in California

When it comes to the fight over Prop 8, the legal argument is far murkier than the moral one.

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Sure, Ken Starr’s a creep who’s made a career as the right wing’s legal hatchet man. But when he told the California Supreme Court yesterday that it couldn’t throw out Proposition 8, he was probably right.

Don’t get me wrong: I think Prop 8, which repeals previously granted same-sex marriage rights, is a shameful blemish on not only California’s constitution but on all of American jurisprudence. And I’m no constitutional law scholar, to be sure. But Starr’s argument that Cali’s voters had every right to bar same-sex marriages in November was as compelling as it was gross. The state’s initiative process, he asserted, was created generations ago to grant the people the power to govern, even when they make “very unwise choices.” Like it or not, it’s been mob rule in California ever since.

That mob rule banned affirmative action back in 1996, setting up copycat initiatives around the country and plunging black student enrollment at UCLA to a lousy 96 students by 2006. Two years earlier, voters passed the infamous Prop 187, which stripped a host of rights from undocumented immigrants, though a federal court threw it out after years of political and legal wrangling. In the late 1970s, the mob upheld the death penalty, even though the court had ruled it unconstitutional.

Now, the mob has enshrined anti-gay discrimination into the state’s founding document. In doing so, it may have also taught the gay rights movement a difficult lesson that black folks learned long ago: In America, the business of winning rights is a messy, often bloody battle best fought in the streets, not in the courts.

A bevy of lawyers, including those for the city of San Francisco and the state attorney general, argued yesterday that the court cannot let the mob’s assault on gay rights stand. They implored the justices to remember their May 2008 ruling that so triumphantly declared marriage a fundamental right for all couples, regardless of gender. They insisted that voters can’t just take that right away. Given the tenor of the justices’ questioning, the effort was probably as vain as it was valiant. We’ll know when the court rules, sometime in the next 90 days.

While the moral case for knocking down Prop 8 is clear to many, the legal case is murkier. The argument is as follows: Prop 8 did not amend the California constitution, but rather revised it. The distinction is key because amendments can happen by initiative, but revisions must go through a far more strenuous legislative process. All sides agree on the long-settled legal question of what constitutes a revision versus an amendment—a revision makes a structural change to state government by, say, redefining the powers of the executive branch. The question is whether Prop 8 meets that standard.

Marriage rights advocates and the city of San Francisco assert it does (notably, the AG doesn’t, but that’s a long story). The court’s May 2008 ruling established that marriage equality is covered by the state constitution’s equal protection clause. And changing the equal protection clause, the marriage rights lawyers argue, is as much of a structural change as can be imagined.

Problem is, there’s no legal precedent for that argument. And there’s loads of precedent for Starr’s counter—namely, that no matter how ugly we find the people’s choices about who gets what right, in California the mob is the decider.

The unavoidable truth behind the whole discomfiting exchange yesterday is that gay rights cannot be won inside the staid confines of a courtroom, not in Cali or anywhere else. I know; this is the right’s argument as well—that voters alone can make these sorts of sweeping social decisions. But the unfortunate reality of American history—Western history—is that oppressed people don’t litigate their way into enforceable equality. The courts are inherently conservative; their leadership in expanding and redefining rights is exceptional, not normative.

For all of the NAACP’s masterful and creative legal work on civil rights, real progress came only once southern blacks forced the issue upon society at large, not just upon judges. Ditto for abolition. I’ve just finished Adam Hochschild’s vibrant history of the British abolition movement—which invented many of today’s standard-issue political tools, from boycotts to political art. These are the weapons that the gay rights movement lacks most, not inventive legal arguments.

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