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Judicial Review Gone Wrong


In both the first and final ads for the Yes on 8 campaign – supporting a Constitutional Amendment to eliminate the right of same-sex couples to marry in California – proponents argued that the people, not San Francisco-based judges, should be the final arbiters of the matter.

Today, in a stroke of irony, the Yes on 8 campaign lawyers are asking the California Supreme Court to decide the referendum’s fate, after prevailing by a narrow margin on November 4th. And it doesn’t sound as though the battle between the courts and the voters will end on the day that the California Supreme Court makes its ruling.

More surprising, given the threats to recall any judges who disagree on the constitutionality of Proposition 8, it’s clear the religious right would rather undo decades of work to build a conservative judiciary than allow two loving people to get married.

At issue before the courts is a fundamental Constitutional question: Who has the power to determine the rights of a minority? Is that for the courts to decide or for the voters? And did Proposition 8 attempt to over-rule the courts or change the state’s constitution. The legal tests to determine it success rest on this very specific point of law.

Proposition 8 seems discreet, adding just fourteen words to the California constitution and dealing with just one subject. But a question about the intent of the amendment – and it’s actual legal status – remains unresolved. Does Proposition 8 take away a power from the Courts and give it to the electorate? If it did, well, we have a interesting set of circumstances.

On statutory questions, the courts clearly are the final arbiters. That was made clear in several decisions including the overturning of Proposition 187, the 1994 initiative which denied state benefits to illegal immigrants, and Proposition 22, the 2000 initiative statute to limit marriage to heterosexual couples. On the issue of protecting minority rights, the people of the state of California can – and do – make those decisions. And the courts can undo them.

That decision as to where Proposition 8 legally stands now rests in the hands of the California Supreme Court. Unlike federal courts, these judges are subject to election and the specter of a recall vote if the people disagree with their actions. Proposition 8′s proponents already tried to blackmail businesses who opposed their constitutional amendment, and now they’re trying to blackmail the State’s highest court, which is despicable.

Proponents of Proposition 8 are already threatening a recall of any judge who votes to overturn the measure. California Republican Party Vice Chairman Jon Fleishman argues that “proponents of Proposition 8 do have a “nuclear option” in their arsenal. That option is the recall or non-reconfirmation of members of the California Supreme Court, if they refuse to uphold Proposition 8. It has happened before, and the issue was the California death penalty.”

While claiming that, “The court should have a chance to do the right thing,” Proposition 8 attorney Andrew Pugno also threatens that, “no one would be able to stop,” a recall vote on the judges.

Republicans should be wary of taking the nuclear option out against Republican judges who were appointed by Republican Governors.

Should any member of the California Supreme Court be removed from the bench now or in 2010, their successor will be appointed by centrist Governor Arnold Schwarzenegger, or even worse, a newly-elected Governor Jerry Brown, Antonio Villaraigosa or Gavin Newsom and face confirmation by a hyper-partisan, Democratic-controlled State Senate. Years of work to give the state a responsible conservative judiciary will be wasted.

So I ask my fellow Republicans: Is gay marriage worth giving up decades of struggle to control the State courts? Even if these judges lost their jobs, do you think a Schwarzenegger- or Brown-appointed replacement would overturn their decision?

Share  Posted by Scott Olin Schmidt at 9:45 AM | Permalink

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