Same-sex marriage may return to the ballot box

In the wake of the California Supreme Court's decision Tuesday to uphold Proposition 8, which eliminated the right of same-sex couples to marry, a surprising scapegoat and potential savior for opponents of the proposition has emerged in the California ballot initiative process. Proposition 8 outlawed same-sex marriage in California when it earned a simple majority of state voters–all that is required to amend the constitution of the U.S.'s most populous state. After the petition to put it on the ballot was signed by the required eight percent of the number of voters from the last gubernatorial election, Proposition 8 earned 52 percent at the ballot box on Nov. 4, 2008, and went into force the next day. Now, it appears opponents of the amendment will try to strike it down the same way it came in. The Courage Campaign, a network of progressive activists, was prepared for the possibility of this decision, and on Tuesday launched a campaign to put same-sex marriage rights on the ballot again, likely as soon as 2010. Asked if how many more rounds of initiatives he foresees, Courage Campaign founder and chair Rick Jacobs told IPS, "Right now, we just feel that rights have been taken and we're just trying to win them back. If others want to spend the time and money to take away the rights of others, that's their business–but we're not going to stop fighting them." In a statement Tuesday, he said, "These are fundamental constitutional rights that cannot be abolished by a ballot initiative." This argument would endow ballot initiatives with the unique characteristics of not being powerful enough to abolish rights, but strong enough to affirm them, which is precisely the argument opponents of Proposition 8 used in court. The decision the court faced rested on the technical distinction between a constitutional "amendment" and a constitutional "revision". An amendment only requires a simple majority of voters, while a revision requires a two-thirds majority in both houses of state legislature and then a majority of voters. In their decision, the court wrote that a revision must have a broader scope than an amendment and must have a significant effect "on the basic governmental plan or framework embodied in the preexisting provisions of the California Constitution." Opponents of Proposition 8 had argued that the proposition should have been a revision since it removed a constitutional right ensuring a minority group would not have its rights impinged on by the majority. The court, however, saw no legal authority to support this claim. "There have been many amendments to the California Constitution," reads its decision, "adopted by the people through the initiative process in response to court decisions interpreting various provisions of the California Constitution, that have had just such an effect" in diminishing a state constitutional right. The decision says that the arguments of Proposition 8 opponents would make the amendment/revision processes a "one-way street" where rights would be able to be granted by amendments and only taken away by revisions, an interpretation they rejected. Jacobs told IPS, however, that this interpretation "sets a very, very dangerous precedent. It allows for the possibility that civil rights can be taken away from anybody and that's very dangerous." Californians have already seen other dangers arise from their ballot initiative process. Budget crises have become an annual occurrence as the legislature has repeatedly been unable to agree on a budget and the gap between revenue and spending now sits at 21.3 billion dollars–and will be 24.3 billion dollars for the fiscal year beginning Jul. 1. This is usually traced back to 1978's Proposition 13, which, in addition to capping property tax rates, mandated a two-thirds majority in both houses of legislature to increase any state taxes or pass a budget. It has since become a sort of third rail for California politicians, since calling for its reform would also be a call for increased taxes. This supermajority requirement has left budget issues largely in the hands of the public, who predictably vote to increase spending but not taxes. On May 19, the budget initiatives proposed by Governor Arnold Schwarzenegger failed at the ballot box, prompting him to remark, "It's very difficult for the people also, because when you ask them about the cuts, when you say, 'Do you mind if we have to make an official 6 billion dollars in cuts in education?' They say, 'Oh, no, no, no, no, no, not education.'" "And then you say, 'Well, how about in health care?' And they say, 'No, I wouldn't go after the vulnerable citizens.' Then you say, 'Well, then you have to make some cuts in law enforcement. And they say, 'Law enforcement, I want to keep that in place.' So people don't know themselves where they want to cut. They just say, 'Make the cuts and you figure it out.'" Increasingly, the consensus seems to be that the cut that ultimately needs to be made is in the legislative majority required to increase state revenue and pass a budget. When the initiative process was adopted by California in 1911, the intention was to allow voters to bypass Sacramento in fast-tracking popular laws and constitutional amendments. It was also an expression of the distrust of centralised government that characterised many Western U.S. populaces. The popular target for distrust these days, however, at least for conservatives, seems to be the courts, and the familiar accusations of "activist judges" would certainly have been thrown about had the court sided against the apparent will of the people on Tuesday. Instead the court took a much more middle-of-the-road approach, siding with Proposition 8 supporters while allowing the 18,000 marriages that occurred prior to the proposition's passing to stand. Though gay rights groups are far from in agreement, the court's opinion pointed to California's domestic partnership law, which offers same-sex couples an avenue for committed family relationships, saying "Proposition 8 exclusively affects access to the designation of 'marriage' and leaves intact all of the other very significant constitutional protections afforded same-sex couples under the majority opinion in the Marriage Cases." In the Marriage Cases of May 2008, the same court declared same-sex couples in California had a fundamental constitutional right to marry. The revolving door of amending the California constitution will, for now, remain open, where there is always the possibility of a measure being adopted, then repealed, then–quite possibly, given that several other states have legalised same-sex marriage since Proposition 8 passed–adopted again. "There is only one other option" available to marriage rights proponents aside from ballot initiatives, according to Jacobs. "The federal government has to change the laws."