James Lacy

James Lacy is a nationally recognized attorney specializing in political and advocacy issues.

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Today is actually: 201410301155Today is: 201410301155

FlashReport Weblog on California Politics

 
 

Supreme Court recall/nonconfirmation could occur if Proposition 8 not held constitutional

 

by James Lacy - Political Law (bio) (email)(print)

 
11-9-2008 2:28 pm
     California voters have spoken twice on same-sex marriage (Propositions 22 and now 8) and their voice, even in this resoundingly Democratic election year, is clear: same sex marriage is not a right that can be equated with the civil rights of racial minorities, or a protected right under the First Amendment.

     But now the bitter losers on Proposition 8 will take their case to the California Supreme Court, where they will ask the jurists to overturn -- for a second time -- a ban on their so-called right to same sex marriage.

     The media, especially the Los Angeles Times, is loving this controversy.   It must be selling newspapers.  The same newspaper that brought us the headline "Obama Captivates the World!" had three separate articles on the issue in today's Sunday paper.  Supporters of same-sex marriage have been protesting religious services today at, among other places, Saddleback Church in Lake Forest.   The Pastor there, Rick Warren, is hardly a gay-basher.  But the activists believe it makes for good media.

     The truth is, the gay marriage crowd is not helping the cause of civil rights for homosexuals.  Gay rights don't depend upon gay marriage.  Should homosexuals have the same protections in law that racial minorities have in employment and housing?  Yes.  That makes sense, and even an arch-conservative with a little constitutional history must recognize it.  But marriage isn't about competition in the marketplace and correcting the potential for being treated unfairly.   It is quite a different situation........

     Regardless, 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.

     Close readers may know I am a heavily-closeted secret admirer of Jerry Brown.  Yes, he is a detestable liberal, but I find him smart and amusing, qualities sometimes sadly lacking in some Republican leaders (except the amusing).  Nevertheless, he made a lot of mistakes as Governor, and one of them was appointing Rose Bird as Chief Justice of the California Supreme Court.

     Bird served on the California Supreme Court during the "Dirty Harry" 1970s when creeps like the Zodiac Killer ruled the night in California.  But as a member of the Court, she voted against the death penalty in 61 straight murder cases.  According to Wikipedia, "[t]his led Bird's opponents to claim that she was substituting her own opinions and ideas for the laws and precedents upon which judicial decisions are supposed to be made."  

     In California, Supreme Court justices must come before the voters for "reconfirmation" in a Soviet-style "yes or no" vote every twelve years (unless appointed during a so-called "midterm," making the reconfirmation vote sooner).   In 1978, Bird had already started to get a bad rap for her anti-death penalty votes.   She won reconfirmation by only 52% of the vote that year.   But by 1986, she was resoundingly turned out of office at the polls, the first member of the California Supreme Court to be removed from that office.  And the death penalty was reinstated in California as a result.

     The next time California Justices will appear on the ballot for reconfirmation will be the November 2, 2010 election.   However, the justices up for reconfirmation at that time will include Ron George, the Chief Justice, William Ming Chin, and Carlos R. Moreno.  George and Moreno voted to overturn Proposition 22, the prior gay-marriage ban initiative.  Thus, Proposition 8 advocates won't have to go thru the expense of a recall campaign to make their point.   All they have to do is wait for November, 2010, which history shows will be a kinder year to Republican voters.   Unfortunately, Chin, who didn't vote against Proposition 22, could get caught in the barrage of a nonreconfirmation battle and be swept out of office just as members of the Rose Bird court were in 1986.

     And there is always the recall option, which would speed up the process.   Circulation of 4 or 5 petitions takes about as much effort as circulation against one Supreme Court justice.

     The Court needs to take practical notice: advocates of Proposition 8 are not going to just dry-up and go away.  As with Proposition 13, Sacramento insiders might not like the message, but the message is clearly one supported by a sustained majority of Californians, and the substance has been there since the beginning of time.   Marriage is between two spouses, man and wife.  Beware!
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