Many conservatives seem to believe that the California Supreme Court’s recent decision mandating gay marriage constitutes some sort of threat to marriage and the Republic, and they are now attempting to place on the ballot a constitutional initiative to overturn it. And surely this would seem to do the trick: the Court can’t say that an initiative amending the state constitution is itself unconstitutional, can they?
Well, actually, they can. There are two ways, both of which have precedent behind them but only of which is credible.
The first is to rely on a precedent from 1967, Reitman v. Mulkey. Reitman involved an initiative that had overturned the state’s 1964 Fair Housing Law. The California Supreme Court voided the initiative on federal constitutional grounds, saying that it was a violation of the US Constitution’s Equal Protection Clause, because enforcing that initiative, and declaring that initiative to be good law, would essentially involve the state in housing discrimination. The US Supreme Court upheld this reasoning. And theoretically, the state court and the federal courts could do the same thing with gay marriage.
If that sounds a little incoherent to you, you’re not alone: in the wake of Reitman, the greatest Constitutional scholar of them all, Charles Black, referred to the “state action” doctrine upon which Reitman relied as a “conceptual disaster area.” I have a hard time believing that this would have much purchase, especially with today’s federal courts. A version of this was tried with the state’s anti-affirmative action initiative, and was swept aside by the Ninth Circuit.
But there is a more plausible stategy, at least in my view.
Although the initiative process can be used to “amend” the Constitution, it cannot be used to “revise” it. The California Supreme Court has actually struck down initiatives as unconstitutional “revisions.” These initiatives usually involved broader reforms, but it is not outside the bounds of reasoning to say that taking away of fundamental right such as marriage and depriving a suspect class of equal protection would constitute such a revision.
Conservatives will, of course, scream at such judicial “usurpation,” although as always, it depends upon whose ox is gored: they didn’t complain much at Bush v. Gore. In any event, the Court could always say that if the public wants to revise the Constitution, there is the perfectly good way of doing so: a Constitutional convention, or a legislatively-approved referendum. It’s no usurpation to say that certain fundamental rights are off-limits to popular majorities.
I strongly doubt that the state Supreme Court would take this tactic if the results of the initiative this November are the same as they were in 2000, i.e. 61% voting against gay marriage. But this November figures to be a lot closer. What if, say, the initiative wins with 50.5% of the vote? And besides, lots of people on both sides of the aisle believe that the initiative process has gotten completely out of hand: if this would signal a renewed effort to cabin the initiative, many would cheer.
It’s just a thought, but stay tuned: if it happens you heard it here first.