No Longer A Democracy?

Most history teachers are quick to correct people about the form of government established by the Constitution of the United States. It’s a republic, not a democracy.

Truthfully, since the 1960s the lines between the two have become blurred, as more and more states turned away from caucuses and closed door deals to choose Party candidates through the primary elections.

But nothing has been more democratic than the initiative process in California in which the people themselves decide on proposed laws and state constitutional amendments.

The initiative process brought Indian casinos to the state, the lottery, and medical marijuana. It even raised taxes while the state and its people were still reeling from the recession. California, it’s pretty clear, won’t be confused with a conservative state.

However, in 2000 Proposition 22, the Knight initiative, was passed into law, stating that “only marriage between a man and a woman is valid or recognized in California.” This law, similar to the Defense of Marriage Act passed four years earlier by the Federal government, added protection to the Family Code which already defined marriage as “a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary.”

Over four and a half million voters passed this law–61% of those who went to the polls. In-court wrangling ensued. In 2008 the California Supreme Court lumped a number of these appeals together and ruled that the law was unconstitutional.

Immediately Proposition 8, an amendment to the California State Constitution known as the California Marriage Protection Act, was put on the ballot. Here’s the text in its entirety:

Section I. Title

This measure shall be known and may be cited as the “California Marriage Protection Act.”

Section 2. Article I. Section 7.5 is added to the California Constitution, to read:

Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California.

For the voter pamphlet then-Attorney General Jerry Brown renamed the proposition, “Eliminates Rights of Same-Sex Couples to Marry. Initiative Constitutional Amendment.” He gave the following description in the election ballot summary: “changes the California Constitution to eliminate the right of same-sex couples to marry in California.”

To this day the media refers to Proposition 8 as a ban on same-sex marriage.

Despite the changed terminology, despite a wall of media giants opposing it, the amendment passed. Over seven million voters decided in favor of the traditional definition of marriage–over 52% of those who went to the poll.

So how can a court undermine the state constitution?

It’s still a little baffling to me. The California Supreme Court upheld the amendment, but then a suit was filed in a Federal District Court in San Francisco.

On August 4, 2010, U.S. District Chief Judge Vaughn Walker overturned Proposition 8, stating it is “…unconstitutional under the Due Process Clause because no compelling state interest justifies denying same-sex couples the fundamental right to marry.”

A merry-go-round of stays and lifting of stays followed, and in the interlude when Judge Walker unilaterally overturned the will of over seven million voters, a host of same-sex couples “married.”

The problem escalated when Attorney General Brown refused to defend the amendment in the appeals court. Another round of arguments cleared the way for proponents of the amendment, a county here in SoCal, to step up and defend the amendment. The California Supreme Court once again ruled in favor of the people, issuing an advisory opinion that the proponents of Proposition 8 did have standing, and could defend it.

However, the Ninth Circuit Court of Appeals, by a 2-1 vote, declared the amendment unconstitutional.

The court found that the people of California, by using their initiative power to target a minority group and withdraw the right to marry they once possessed under the California State Constitution, violated the federal Constitution.

Of course, you need to remember that they only had the “right to marry” because the court had declared Proposition 22 unconstitutional.

The dissenting judge, Judge N. Randy Smith, noted in his dissent that states do legitimately prohibit sexual relationships condemned by society such as incest, bigamy, and bestiality, and impose age limits for marriage without violating constitutional rights . . . He wrote, “The family structure of two committed biological parents – one man and one woman – is the optimal partnership for raising children.” He also said that governments have a legitimate interest in “a responsible procreation theory, justifying the inducement of marital recognition only for opposite-sex couples” because only they can have children. (“California Proposition 8”)

Despite this ruling, the stay remained in place as the appeal went to the US Supreme Court. As you may know, that ruling came down yesterday: “On June 26, 2013, the Supreme Court ruled in Hollingsworth v. Perry that the proponents of Proposition 8 did not have legal standing to appeal a U.S. District Courts’ ruling that the proposition is unconstitutional. The state government had refused to defend the law.”

So there you have it folks: seven million Californians disenfranchised via a series of moves that would have made carpetbaggers proud.

We have a judge who disregarded the will of the people and an Attorney General who ignored the will of the people. And the Supreme Court, instead of standing up for the people, says, well, your state government didn’t defend your vote, so it’s as if you voters never had a say.

That whole process is not the way a democracy works. An oligarchy, with power in the hands of a few, yes. A democracy? . . . May it rest in peace.