Whether or not the California Supreme Court rules in favor of same-sex marriage equality today, Californians will probably be voting this fall on a constitutional amendment to ban same-sex couples’ marriages. Apparently, 1.1 million signatures have been submitted, and only 694,354 need to be found valid in order for the amendment to get on the ballot — about 63% of those submitted.
What I don’t understand is why it’s so easy for Californians to amend their constitution. It merely requires a one-time majority vote by the public — the state legislature has no involvement. The process is exactly the same as for a ballot proposition, except that a ballot proposition requires signatures from 5% of the number of voters in the last gubernatorial election in order to get on the ballot and can be found unconstitutional, while a proposed constitutional amendment requires 8% to get on the ballot and becomes part of the state constitution and therefore by definition cannot be unconstitutional — although whether it violates the U.S. Constitution is another matter.
Under traditional ideas of constitutional theory, this is bad. Amending a constitution is supposed to be harder than passing an ordinary law because constitutional law is supposed to be “higher” than ordinary law. If you can simply amend the constitution by popular vote, what’s the point of having a constitution?
This is particularly troublesome when it comes to individual rights. One of the purposes of a constitution is to protect individual rights from being taken away by a majority. If a majority of Californians can remove a minority’s individual rights through simple popular vote, something is really wrong.
In 2000, a majority of Californians voted in favor of a ballot proposition to ban same-sex marriage. Had it been a constitutional amendment instead of a ballot proposition, the ban would have been enshrined in the state constitution and the California Supreme Court wouldn’t be able to do anything about it today. We’re just lucky that it came up in the form it did.
That is rather shocking. I’d be curious to know how often the California Constitution has been amended and what the reasons for those amendments were. Historically, amendments to the US Constitution have been drafted to ensure and expand individual rights, rather than limit them and I’m wondering if the same could be said of California (or any other state). Also, are gay people the only group to have had discrimination against them so handily incorporated into state Constitutions?
Is it possible that based on the prescedent of expansion of rights in US Constitutional amendments, that all the state amendments banning marriage equality could be over-turned?
Doubtful — legal arguments are usually more specific than that. Anyway, it wouldn’t happen in the current Supreme Court. And even if it did, it would give impetus to the Federal Marriage Amendment. One person’s right is another person’s “judicial activism,” unfortunately.
You know, being a longtime California resident I’m kind of ashamed that I’ve never even looked at its constitution until now. I do remember there being a number of amendments on the ballot over the years that I’ve been voting, and compared to the U.S. Constitution, they’ve been on seemingly mundane, nitty-gritty topics like transportation and energy.
California is the reason I read petitions before I sign. No matter how reasonable the cause sounds, I don’t sign if the goal is to tie the hands of the legislature. It’s a republic, not a democracy. Vote for someone who represents your interests and let them exercise judgment. This government by popular vote makes California pretty ungovernable.
The California Constitution has been amended so many times through the initiative process that it’s beginning to resemble a telephone book. Initiative authors (particularly the ones hired by corporate and other wealthy interests) like to amend the constitution because it gives whatever special interest they’re representing greater clout than a mere statute. And voters tend not to pay attention to the distinction between an initiative statute and an initiative constitutional amendment; they just react to the most persuasive and pervasive advertising (one dollar, one vote).
The initiative process started out as a way around the 19th century railroad barons’ corrupt domination of the Legislature. It has since become tool for even more corrupt special interests to buy legislation and constitutional amendments.