Recall Threatens California Justices As They Consider Proposition 8

Now that the California Supreme Court will consider the legality of Proposition 8, proponents of the initiative say they will consider a recall of the justices if they do overturn it.

According to the San Diego Union-Tribune:

“If that happens, watch out for a “barn-burner of an election — the biggest thing this state has ever seen,” says recall election guru Ted Costa. Costa says he’s already been contacted by some of the folks who would seek to recall Ronald George, Joyce Kennard, Kathryn Werdegar and Carlos Moreno if Prop. 8 is scrapped. He thinks it’s premature and risky because talk of a recall “would just (bleep) off the judges.” Costa also doesn’t sound like he’s too thrilled about such a recall, saying it wouldn’t be “healthy.” Citing all the financial turmoil in California, he said, “If someone’s going to do some recalling, that should be the focus.”

With the threat of a political guillotine hanging over their heads, the California justices will have to determine the legality of Proposition 8. Gay marriage has now thrust itself smack into the center of the culture wars. Abortion, prayer in the public schools and other issues are secondary to the gay marriage debate.

It is important to realize how divisive this issue is. Gay marriage was ruled a fundamental right by the California Supreme Court on a 4-3 vote. Proposition 8 stripped that right away with 52% of the vote. That closeness in the November vote is the core of the challenge to Proposition 8.

California law allows two ways to amend the constitution: amendment or revision.

An amendment needs only a majority approval by the legislature or the people. It is generally considered a narrow alteration.

A revision needs 2/3 approval and is generally considered to be more widespread, affecting multiple areas of the constitution.

Considering the traditional view, Proposition 8 opponents would appear to have an unlikely route to victory before the court.

However, no state in the country has ever taken away a fundamental right by changing its constitution. That may mean the opportunity to repeal is possible because of the enormous precedent Proposition 8 sets for other rights. Here is a hypothetical situation posted in The Volokh Conspiracy:

(1) Suppose a majority of the people became concerned about the growing political influence of Mormons, exhibited by what the majority regarded as their huge donations to political campaigns, and decided to alter the state constitution to deny Mormons, and Mormons alone, the right to make contributions to ballot fights. Aside from the obvious federal constitutional issues involved, would the change be considered an “amendment” or a “revision” under the California constitution? (2) Suppose a majority of the people decided that blacks were not taking the responsibilities of marriage very seriously, exhibited by what the majority regarded as high illegitimacy rates, high divorce rates, and rampant cohabitation and promiscuity, and decided to alter the state constitution to deny to blacks, and blacks alone, the fundamental right to marry? Again putting aside the invalidity of such a change under the federal constitution, would the change be an “amendment” or a “revision” under the California constitution?

There is one other problem with Proposition 8. It originally acquired ballot status before gay marriage was ruled a right guaranteed by the state constitution. That places it on some legal potholes not normally faced by initiatives. The most obvious pothole being that the signers of the petition did not have the proper proposed ballot statement before them. That statement did not state that it proposed taking a right away from a group of people. Of course, that was because the court had not affirmed that right yet. The problem with this initiative is that it was originally designed to affirm that gay marriage was not a part of the state constitution, not to repeal it.

My guess is that this issue reappears on the 2010 ballot. The California Supreme Court may try to find a face-saving way throw this back onto the ballot or to the legislature while keeping the marriage ban temporarily intact but requiring a two-thirds majority for a permanent ban.

The path to that scenario would take a lot of creativity, but these justices are still politicians. Politicians have a knack for discovering ways to save their own skins.