I have penned the following commentary, which appears today in the print and online version of Capitol Weekly newspaper.  Its intended reading audience is our State Supreme Court Justices…

When considering Proposition 8, remember Rose Bird
Jon Fleischman

On May 15 of this year, four Supreme Court Justices – Chief Justice Ron George and Associate Justices Joyce Kennard, Carlos Moreno, and Kathryn Werdegar– put on their “judicial activist” hats and tossed out Proposition 22, which had been passed by California voters by a healthy majority, placing into California law that marriage shall only be between a man and a woman.

The decision by these four individuals set into motion the Proposition 8 campaign with the simple premise…  “Fine, if the Justices are going to say that Proposition 22 violates the State Constitution, we will make an amendment to the State Constitution, making it clear what the will of the people is in this matter.”

After what was the most expensive ballot measure campaign on a social issue in the history of this country, the people of California, by majority vote, passed Proposition 8, amending the Constitution itself, to protect the institution of marriage.

Within hours of the proponents of Proposition 8 declaring victory, advocates for homosexual marriage have gone back to the Supreme Court to try and get Proposition 8 struck down, no doubt hoping that the same four Justices will again, and in a much more egregious way than before (if that is possible), strike down a second vote of the people.

You have to take it with a healthy dose of cynicism that 44 Democrat legislators have sent a letter to the California State Supreme Court, in support of the motion to overturn Proposition 8.

Huh?

I accept that it is a role of the courts to review laws passed to determine if they are constitutional or not, though I disagree with the Court’s May decision on Proposition 22.  But what kind of hubris would a Supreme Court Justice have to show to justify overthrowing a Constitutional Amendment (Proposition 8) as… unconstitutional?

Oh wait, advocates of overturning Proposition 8 are saying that because of the violation of the rights of gay people is so extreme, a constitutional “revision” (requiring a two-thirds vote) not an amendment (majority vote) is required.

It doesn’t take a rocket scientist to figure out that a Constitutional revision is for some wholesale changes in the state Constitution.  The reason that an amendment process exists is so that the people can make relatively minor changes in the Constitution without calling a Constitutional Convention.

Here is the ENTIRE text of Proposition 8:

If this short amendment is not an amendment, then what is?  It’s ironic that so many Democratic legislators oppose the democratic process.

That said, it really is all on the California Supreme Court members now.  The previous ruling by George, Kennard, Moreno, and Werdegar throwing out Proposition 22 was egregious and wrong, and by passing Proposition 8, in some way the uber-activist court majority that canned Proposition 22 was given a pretty hard slap on the wrist.

If the Court overturns 8, I think you will be able to count the days before a very organized and well funded recall of the Justices voting to do that will begin.  Given the passion on this issue, and the financial resources available, a recall of these Justices would be on the ballot lickety-split, and then the Justices who didn’t believe in the primacy of the voters can understand what it feels like to feel their wrath.

I have spoken to many friends of mine who opposed Proposition 8 (yes, I have many of those) and most of them have told me that turning to the courts to try and overturn this measure is along the lines of being “sore losers” – that the people have spoken.  As one of them said to me, “If opponents of Proposition 8 felt it was unconstitutional, why didn’t they go to the Court to have it taken off the ballot before the vote?”

Good question.

Anyway, Justices, it’s all on you.  This is an easy call.  If you insist on flagrantly abusing the authority given to you by the people, then be prepared for a battle.  No government official is immune from the voters’ will, whether they be in the executive, legislative or, yes, even in the judicial branch.

Remember Rose Bird?

Care to read comments, or make your own about today’s Daily Commentary?

Just click here to go to the FR Weblog, where this Commentary has its own blog post, and where you can read and make comments.

This entry was posted on Thursday, November 13th, 2008 at 12:00 am and is filed under Blog Posts.