There has been much discussion about the California ballot initiative that would ban same-sex marriages from a moral / social / religious perspective, but not much about the concept of overturning court decisions by majority vote. 

Vikram David Amar at Findlaw writes in a post entitled, "The California Supreme Court's Gay Marriage Opinion: The People of California Have the Power to Undo It By a Ballot Initiative Amending the State Constitution, But How Far Should That Power Extend?" and argues that the majority should have the abiltiy to change the California Constitution.

By definition, whatever the California people want the California constitution to be, it will be. In this regard, I might disagree a bit with Professor Dorf's assertion that "California constitutional law [does not] embrace the view that minority rights turn on the majority's willingness to recognize those rights." In a very real sense, California constitutional law – and all constitutional law, for that matter – does embrace that exact view. As my brother and (sometimes)FindLaw colleague, Akhil Amar, has put the point: "In the end, individual [and minority group] rights in our system are, and should be, the products of ultimately majoritarian processes." 

 

Columbia University School of Law Professor Michael Dorf, on his blog, MichaelDorf.com, writes a post entitled "California's Majoritarian Difficulty" and argues that this may cede too much power to the whim of the majority:

 

. . . the ease of amendment of the California Constitution should dramatically reduce the fear of judicial activism in California. If the Justices are terribly out of step with popular opinion as to the meaning of the state Constitution, the voters of the state can readily "overrule" the Justices. Thus, there is no real "counter-majoritarian difficulty" in California.

There does, however, appear to be a "majoritarian difficulty" in California. One of the purposes of having a constitution is to limit majoritarian decisions. Where a high court ruling is too difficult to change via constitutional amendment, the counter-majoritarian difficulty arises. But where the constitution can be amended as easily as a statute can be enacted, it effectively does not limit the majority, and thus we have the majoritarian difficulty.

Where, exactly, is the sweet spot between a Constitution that is too difficult to amend and one that is too easy to amend? That's a hard question to answer in the abstract, although prima facie, a constitution that is impossible to amend (as the German Constitution purports to be on certain particulars) seems too difficult, whereas a constitution that can be amended by the ordinary legislative process (as the Israeli Basic laws can be) seems too easy. But much depends on context. A simple majority vote in the national or provincial legislatures is all that's required to supersede a constitutional decision of the Supreme Court of Canada under the Notwithstanding Clause, but a strong customary norm has made that power very difficult to invoke in practice.

http://www.michaeldorf.org/2008/05/californias-majoritarian-difficulty.html

The California Secretary of State has posted a study, including titles and results, about the history of California initiatives from 1912 to 2001 at http://www.sos.ca.gov/elections/init_history.pdf

Among the proposed initiatives that made the ballot which would have amended the California Constitution,  some have relevance to the issues we discuss on ReligiousLiberty.TV.

One Day Rest in Seven (1914) (Rejected)
Requiring Bible in Schools (1926) (Rejected)
Sunday Closing Law (1930) (Rejected)
Taxing of School Property of Religious and Other Non-Profit Organizations (1958) (Rejected)
Subversive Activities (1962) (Rejected)
Terminal Illness – Assistance with Dying (1991) (Rejected)

Names of proposed amendments, including frequent initiatives on Bible reading in school, Sunday closing laws, and School Prayer,  and racial issues that arose earlier in the 1900s that did not make the ballot are not included in this list, and it is in no way comprehensive.  But they do illustrate some of the types of issues, aside from the routine tax, budget-type issues that Californians can decide. 

Some may argue that voters have a basic sense of fairness and goodwill and understanding of fundamental human rights, as traditionally expressed in the Declaration of Independence and the United States Constitution, and would only sparingly use their votes to curtail the attempts by other to maintain or gain rights, and then only under the most dire of circumstances.

But in times of fear and uncertainty, when an advantage at the poll might lead to an advantage in the pocketbook or increase a sense of security or a desperately needed return to spiritual orthodoxy, all bets are off.

The power that Californians have to change the constitution must be applied with fear and trembling.  This process can be easily abused, and a quid pro quo among competing interests could even now be in the development stage. If the marriage amendment passes, will advocates then seek to undermine the property interests of churches or the rights of religious workers?  We know what is on the November 2008 ballot, but can only vaguely predict what we will see in 2009, 2010, and beyond.

For Californians and residents of other states that have a similar initiative process, your rights under your state's constitution are in the hands of your neighbors. Treat them well.

 

 
 

19 Comments

  1. Alison Agins says:

    I personally have difficulty becoming too over wrought because people of the same sex want to establish a union that is called marriage and is recognized by the civil government.

    If we are champions of religious and civil liberty then I don't quite know how we can pull down a shade between this liberty and all the others. People that are very against it somehow believe that their belief system is worthy and right enough to forbid someone that doesn't have the same belief system to take part in one of the most basic of heart's desire, to find that someone special and form a bond that lasts through their lives together with all the rights and privileges that anyone else has.

    In this day and age when half of all marriages end in divorce and many of those marriages are between Christian people how can we claim that it is so sacred that gays getting married will somehow cheapen it and cause it's demise. Straights have already taken marriage right down in the mud. How about we concentrate on "Swingers"? Take away their marriage certificates and annull all their marriage rights. After all they have certainly sullied marriage!

    What I have been seeing in the papers at least, are couples that have been living together for decades. Loving and caring for each other and some of them have had families.

    When this country was first forming the only persons that could perform a marriage was the state appointed ministers. Some couples would have to live without the marriage ceremony having been preformed for sometimes years before the minister would make his rounds and show up to put his blessing on the union. Were they any less married until that happened?

    Why does it take the civil courts to ok the marriage before a couple actually feel like they are married? Probably because of all that can happen if one of them dies, or if one takes off leaving children and debts. This is what I think is the driving force behind couples wanting to be married. They want that "piece of paper". And there are plenty of them that are religious and they want that blessing as most of us do.

    I realize that I'm looking at this differently than so many of my fellow Christians. But, I just can't accept that this "sin" is worse than the sin of adultery, sexual child abuse which are sins that are all too common in Christian churches. Which of course leads to one of the worst sins which is hypocrisy.

    I wonder just what we would see in the homes of some of the most out spoken Christians against gays and their civil and religious rights. Would we witness wonderful Christian homes with everyone living the "golden rule" or would we find harshness, unkindness, cruelty, secret watchers of porn, spousal abuse and child abuse. I really wonder if we would see a splinter or a tree in the eyes of those passing judgement.

    Often Sodom and Gomorrah are mentioned as why gays can not be given the right of marriage. Seems that the story was about a terrible evil. Men of all types and ages were trying to bang down Lot's door to get to the beautiful strangers. There must have been married men among that crowd and look at Lot how he was willing to toss out his daughter to the wolves. I think that there is something more in this story than a tale that backs up the denial for persons of the same sex to vow to remain true to each other through thick and thin. What other perversions were at work in those cities?

    In this day and age, If two people want to pledge their lives to each other and they actually stick to it would be remarkable. I know that some are willing for them to have unions that are recognized, just don't call it marriage. Well I think marriage has already taken some huge hits and this will not be the straw that completely destroys it.

  2. Alison Agins says:

    I personally have difficulty becoming too over wrought because people of the same sex want to establish a union that is called marriage and is recognized by the civil government.

    If we are champions of religious and civil liberty then I don't quite know how we can pull down a shade between this liberty and all the others. People that are very against it somehow believe that their belief system is worthy and right enough to forbid someone that doesn't have the same belief system to take part in one of the most basic of heart's desire, to find that someone special and form a bond that lasts through their lives together with all the rights and privileges that anyone else has.

    In this day and age when half of all marriages end in divorce and many of those marriages are between Christian people how can we claim that it is so sacred that gays getting married will somehow cheapen it and cause it's demise. Straights have already taken marriage right down in the mud. How about we concentrate on "Swingers"? Take away their marriage certificates and annull all their marriage rights. After all they have certainly sullied marriage!

    What I have been seeing in the papers at least, are couples that have been living together for decades. Loving and caring for each other and some of them have had families.

    When this country was first forming the only persons that could perform a marriage was the state appointed ministers. Some couples would have to live without the marriage ceremony having been preformed for sometimes years before the minister would make his rounds and show up to put his blessing on the union. Were they any less married until that happened?

    Why does it take the civil courts to ok the marriage before a couple actually feel like they are married? Probably because of all that can happen if one of them dies, or if one takes off leaving children and debts. This is what I think is the driving force behind couples wanting to be married. They want that "piece of paper". And there are plenty of them that are religious and they want that blessing as most of us do.

    I realize that I'm looking at this differently than so many of my fellow Christians. But, I just can't accept that this "sin" is worse than the sin of adultery, sexual child abuse which are sins that are all too common in Christian churches. Which of course leads to one of the worst sins which is hypocrisy.

    I wonder just what we would see in the homes of some of the most out spoken Christians against gays and their civil and religious rights. Would we witness wonderful Christian homes with everyone living the "golden rule" or would we find harshness, unkindness, cruelty, secret watchers of porn, spousal abuse and child abuse. I really wonder if we would see a splinter or a tree in the eyes of those passing judgement.

    Often Sodom and Gomorrah are mentioned as why gays can not be given the right of marriage. Seems that the story was about a terrible evil. Men of all types and ages were trying to bang down Lot's door to get to the beautiful strangers. There must have been married men among that crowd and look at Lot how he was willing to toss out his daughter to the wolves. I think that there is something more in this story than a tale that backs up the denial for persons of the same sex to vow to remain true to each other through thick and thin. What other perversions were at work in those cities?

    In this day and age, If two people want to pledge their lives to each other and they actually stick to it would be remarkable. I know that some are willing for them to have unions that are recognized, just don't call it marriage. Well I think marriage has already taken some huge hits and this will not be the straw that completely destroys it.

  3. Alison Agins says:

    I personally have difficulty becoming too over wrought because people of the same sex want to establish a union that is called marriage and is recognized by the civil government.

    If we are champions of religious and civil liberty then I don't quite know how we can pull down a shade between this liberty and all the others. People that are very against it somehow believe that their belief system is worthy and right enough to forbid someone that doesn't have the same belief system to take part in one of the most basic of heart's desire, to find that someone special and form a bond that lasts through their lives together with all the rights and privileges that anyone else has.

    In this day and age when half of all marriages end in divorce and many of those marriages are between Christian people how can we claim that it is so sacred that gays getting married will somehow cheapen it and cause it's demise. Straights have already taken marriage right down in the mud. How about we concentrate on "Swingers"? Take away their marriage certificates and annull all their marriage rights. After all they have certainly sullied marriage!

    What I have been seeing in the papers at least, are couples that have been living together for decades. Loving and caring for each other and some of them have had families.

    When this country was first forming the only persons that could perform a marriage was the state appointed ministers. Some couples would have to live without the marriage ceremony having been preformed for sometimes years before the minister would make his rounds and show up to put his blessing on the union. Were they any less married until that happened?

    Why does it take the civil courts to ok the marriage before a couple actually feel like they are married? Probably because of all that can happen if one of them dies, or if one takes off leaving children and debts. This is what I think is the driving force behind couples wanting to be married. They want that "piece of paper". And there are plenty of them that are religious and they want that blessing as most of us do.

    I realize that I'm looking at this differently than so many of my fellow Christians. But, I just can't accept that this "sin" is worse than the sin of adultery, sexual child abuse which are sins that are all too common in Christian churches. Which of course leads to one of the worst sins which is hypocrisy.

    I wonder just what we would see in the homes of some of the most out spoken Christians against gays and their civil and religious rights. Would we witness wonderful Christian homes with everyone living the "golden rule" or would we find harshness, unkindness, cruelty, secret watchers of porn, spousal abuse and child abuse. I really wonder if we would see a splinter or a tree in the eyes of those passing judgement.

    Often Sodom and Gomorrah are mentioned as why gays can not be given the right of marriage. Seems that the story was about a terrible evil. Men of all types and ages were trying to bang down Lot's door to get to the beautiful strangers. There must have been married men among that crowd and look at Lot how he was willing to toss out his daughter to the wolves. I think that there is something more in this story than a tale that backs up the denial for persons of the same sex to vow to remain true to each other through thick and thin. What other perversions were at work in those cities?

    In this day and age, If two people want to pledge their lives to each other and they actually stick to it would be remarkable. I know that some are willing for them to have unions that are recognized, just don't call it marriage. Well I think marriage has already taken some huge hits and this will not be the straw that completely destroys it.

  4. Bryan says:

    I feel that if we bow to majority rule, then our nation as a whole runs the risk of tyranny of the majority. This is precisely what the founding fathers feared. Just because something is popular doesn't make it right; just because something is right doesn't make it popular. Look to the Bill of Rights for examples of laws that the founding fathers thought were necessary for the minority of citizens.

  5. Bryan says:

    I feel that if we bow to majority rule, then our nation as a whole runs the risk of tyranny of the majority. This is precisely what the founding fathers feared. Just because something is popular doesn't make it right; just because something is right doesn't make it popular. Look to the Bill of Rights for examples of laws that the founding fathers thought were necessary for the minority of citizens.

  6. Rhonda says:

    The supreme courts (both state and federal) in this country are on a total power trip. Their job is to confirm or deny wheter laws (made by the legislature) are constitutionally fit. That is it, nothing more, nothing less. I wonder if we'll ever get back to that place. I doubt it.

  7. Rhonda says:

    The supreme courts (both state and federal) in this country are on a total power trip. Their job is to confirm or deny wheter laws (made by the legislature) are constitutionally fit. That is it, nothing more, nothing less. I wonder if we'll ever get back to that place. I doubt it.

  8. Katie says:

    I feel that gay people should be provided every freedom that is provided to straight people. I don't understand the mentality that allowing gays to marry, somehow undermines "traditional" marriages. I think that someday we will view not allowing gays to marry, the same way that we now view slavery, women not being allowed to vote, prohibition, etc. It will be viewed as something in our country's history that didn't make much sense!

  9. Katie says:

    I feel that gay people should be provided every freedom that is provided to straight people. I don't understand the mentality that allowing gays to marry, somehow undermines "traditional" marriages. I think that someday we will view not allowing gays to marry, the same way that we now view slavery, women not being allowed to vote, prohibition, etc. It will be viewed as something in our country's history that didn't make much sense!

  10. Stellar post. Well done!

  11. Stellar post. Well done!

  12. tony says:

    I would have to say that it is a touchy subject. Though I think people should have theright to choose what it is that they want in life others may not think so. It is very difficult to say what is right and what is wrong considering everyone is so different.

  13. tony says:

    I would have to say that it is a touchy subject. Though I think people should have theright to choose what it is that they want in life others may not think so. It is very difficult to say what is right and what is wrong considering everyone is so different.

  14. Tara says:

    I think it's ridiculous that there is still controversy this day and age about same sex marriage. Being that this is a Christian-based society, filled to the brim with divorce, anyone should be able to marry anyone. The end! The government has too much power in this country currently, and we as a people need to do something about it now.

  15. Tara says:

    I think it's ridiculous that there is still controversy this day and age about same sex marriage. Being that this is a Christian-based society, filled to the brim with divorce, anyone should be able to marry anyone. The end! The government has too much power in this country currently, and we as a people need to do something about it now.

  16. Brent Lindgren says:

    No matter how one comes down on the issue of gay marriage, I notice that we are often quick to decry the dangers of majority rule (whether it be a super-majority interest in amending a state or federal constitution or even just the workings of our democratic government) in our desire to protect the religious freedoms of minorities. However, the interpretations rendered by our judiciary are often equally, if not more, fickle – and therefore probably just as dangerous (if not more so) to our religious freedoms. Because our courts sway by the whims of only a few, they wield far more power than the majority. In fact, the desire of the majority is often overruled by our courts (as evidenced by the gay marriage scenario). Judges too often interpret constitutions according to their political preferences rather than by their "plain meaning." Ironically, maybe the majority will prove to operate as more of a safety net in protecting our religious freedoms from the courts.

  17. Brent Lindgren says:

    No matter how one comes down on the issue of gay marriage, I notice that we are often quick to decry the dangers of majority rule (whether it be a super-majority interest in amending a state or federal constitution or even just the workings of our democratic government) in our desire to protect the religious freedoms of minorities. However, the interpretations rendered by our judiciary are often equally, if not more, fickle – and therefore probably just as dangerous (if not more so) to our religious freedoms. Because our courts sway by the whims of only a few, they wield far more power than the majority. In fact, the desire of the majority is often overruled by our courts (as evidenced by the gay marriage scenario). Judges too often interpret constitutions according to their political preferences rather than by their "plain meaning." Ironically, maybe the majority will prove to operate as more of a safety net in protecting our religious freedoms from the courts.

  18. Heath Cole says:

    Personally, I feel that instances such as this need to happen more often. The fact that our presidential elections are NOT determined by the majority vote (otherwise known as the popular vote) angers me, as it means that your vote basically does NOT count. I feel that the people own this country and run this country, in the idealistic view. Therefore, voting on constitutional amendments is a given right in this country. I do not care what the topic is, if the majority votes it in then it is the word of the people. Such is a democracy.

  19. Heath Cole says:

    Personally, I feel that instances such as this need to happen more often. The fact that our presidential elections are NOT determined by the majority vote (otherwise known as the popular vote) angers me, as it means that your vote basically does NOT count. I feel that the people own this country and run this country, in the idealistic view. Therefore, voting on constitutional amendments is a given right in this country. I do not care what the topic is, if the majority votes it in then it is the word of the people. Such is a democracy.

 
 
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