“By using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the People of California violated the Equal Protection Clause.”
That sentence is the heart of what the majority said in Tuesday's federal appellate court ruling on Prop 8.
The decision not only said that Prop 8 was unconstitutional.
It said, unapologetically, that the people of California, in approving it, violated the U.S. constitution -- and specifically its clause requiring equal protection for all under the law.
Such phrasing is unavoidable, but it's also politically problematic--and could easily be used to stir a backlash not only among same-sex marriage opponents but among people who don't much like judges.
As it happens, the decision's author, Judge Stephen Reinhardt, has a history of starting political fires; he was part of a 2002 ruling that said recitation of the Pledge of Allegiance in public schools is unconstitutional.
Rinehart's decisions tries to soften the criticism of California voters who approved Prop 8.
It takes pains to say that those who support Prop 8 are people of "good will" and that they aren't prejudiced or irrational.
But the decision also says the people had no legitimate reason -- a reason involving a significant government interest -- for taking away the rights of same-sex couples to marry.
(The decision also contains a passage that, at best, suggests that judges disapprove of California's inflexible, powerful initiative process -- and specifically of the fact that a majority of voters in one election can change the constitution. But this view, expressed elliptically, isn't material to the case).
The judges, of course, have a point. And here's hoping that this decision has an impact that goes far beyond same-sex marriage into the issue of governance.
California voters would be wise to take the court's advice and make their initiative process more flexible, permitting changes to statute and making it harder to embed initiatives in the constitution.
The decision also suggests, indirectly, that Californians could save themselves a bunch of time and money (and the embarassment of being called out publicy by federal judges for violating constitution) if they subjected initiatives to a test of their constitutionality before they pass.
One specific idea: outlaw initiatives that affect intimate individual rights. This would take issue related to procreation, sexual orientation, and race, at the very least, off the initiative table -- a move that might be healthy for our politics.