Prop. 8: Which Way Now?

Will the courts or the ballot box be the best way to overturn California’s anti–gay marriage constitutional amendment? Legal scholar Kenji Yoshino examines both approaches.



Yes on Prop 8 rally x390 (Getty) |

These are strong arguments. Yet Prop. 8 challengers must clear some daunting hurdles. California precedents set a high bar for what constitutes a revision. As law professor Goodwin Liu points out, the courts have declined to designate other significant changes to the California constitution as revisions. These changes include caps on property tax rates, the imposition of legislative term limits, and the reinstatement of the death penalty.

The Prop. 8 lawsuit also will encounter political resistance. When the court legalized same-sex marriage in May by one vote, it was lambasted by conservatives for engaging in judicial activism. For many California voters, a judicial invalidation of Prop. 8 would pile insult on injury.

Unlike their federal counterparts, moreover, the California justices are subject to voter recall. Many California voters -- and justices -- remember the recall of Chief Justice Rose Bird in 1986. Chief Justice Bird insistently interpreted the constitution to protect the right of individuals to be free from capital punishment. This interpretation ran counter to the electorate’s support of the death penalty, and she was recalled. All the justices on the California supreme court will be thinking of Rose Bird as they cast their votes.

To be clear, I am not celebrating the fact that a simple majority of California voters have been able to deprive same-sex couples of the right to marry. To the contrary, I think this question is much better suited to deliberative than direct democracy. My assessment here is merely predictive. For both precedential and political reasons, I think this case is a loser.

The Political StrategyThe only other way to wipe out Prop. 8 is to supersede it with another ballot measure. With the same admirable alacrity that lawyers showed in filing the lawsuit, activists have already begun the campaign to overturn Prop. 8 with another amendment. Equality California, the group that ran the No on 8 campaign, has announced that it may put the same-sex marriage issue on the ballot as early as 2010. This date may be overly optimistic, given that a lot of political and financial capital has already been spent on the No on 8 effort. But there are at least three reasons to be excited about the political strategy.

First, this strategy moves away from lawyer-driven civil rights toward grassroots civil rights. Lawyers have been and always will be an important part of civil rights. But Americans have come to depend too much on the country’s lawyers to protect their civil rights. Gays and lesbians are no exception.

A doctor friend once told me that on his first day of medical school, his dean gave an unforgettable address. The dean said the ailments of patients would or would not resolve themselves but that in the large run of cases, doctors would have no ability to influence the outcome. Part of what students needed to learn in medical school, the dean said, was to surrender their layperson’s reverence for doctors.

I wish every law school dean would give a comparable lecture to every incoming law class and to the nation at large. There are certain civil rights matters only lawyers can handle. But civil rights has always ultimately depended on the population at large, rather than on the tiny sliver of us who are lawyers. So yes, only judges with legal training could have interpreted the California constitution to give us the marriage decision in May. But it was nonlawyer citizens who almost defeated Prop. 8, and I predict it will be citizens -- not judges -- who will ultimately get rid of it.

Tags: Politics