A little memory-refresher on California propositions
Yesterday I wrote this post about three ballot initiatives in California designed to protect children and parents from the radical trans activist push in that state. In it, I observed:
What if these ballot measures pass? I have a hunch they might be invalidated by the California courts. You see, in a blue state the left has several layers of defense. Forget about Democracy™ when it doesn’t go the way the left wants it to.
It occurs to me that many readers might not know the history behind my claim. So I want to call your attention to California’s Proposition 187 and Proposition 8. Here’s some history on Proposition 187 [remarks in brackets mine]:
California Proposition 187 (also known as the Save Our State (SOS) initiative) was a 1994 ballot initiative to establish a state-run citizenship screening system and prohibit illegal immigrants from using non-emergency health care, public education, and other services in the State of California. Voters passed the proposed law at a referendum on November 8, 1994. The law was challenged in a legal suit the day after its passage, and found unconstitutional by a federal district court on November 11. In 1999, Governor Gray Davis halted state appeals of this ruling.
Passage of Proposition 187 reflected state residents’ concerns about illegal immigration into the United States. Opponents believed the law was motivated by bigotry against illegal immigrants of Hispanic or Asian origin [or claimed to believe it]; supporters maintained that their concerns were economic: that the state could not afford to provide social services for so many people who had entered the country illegally or overstayed their visas.
And we all know how California is doing now.
As for Proposition 8, it went this way:
Proposition 8, known informally as Prop 8, was a California ballot proposition and a state constitutional amendment intended to ban same-sex marriage; it passed in the November 2008 California state elections and was later overturned in court. The proposition was created by opponents of same-sex marriage in advance of the California Supreme Court’s May 2008 appeal ruling, In re Marriage Cases, which followed the short-lived 2004 same-sex weddings controversy and found the previous ban on same-sex marriage (Proposition 22, 2000) unconstitutional. Proposition 8 was ultimately ruled unconstitutional by a federal court (on different grounds) in 2010 …
Both propositions had one thing in common: it could be argued that they targeted one of the identity groups protected by the left. The first was illegal immigrants and the second was gay people. If Proposition 8 had stood, it would of course have been overruled by Obergefell. But by the time that ruling came down, Proposition 8 was no more.
The current push to protect children from medical transition, to protect the rights of parents to be told if a school is transitioning their child, and to protect women’s sports, all have the same weakness as far as the California courts are concerned: they could be argued (and almost certainly will be argued, if passed) to discriminate against an identity group protected by the left.
My favorite example was when District Judge Benitez ruling that CA’s ban on the sale of high capacity gun magazines was unconstitutional. Shocker. A couple weeks later, a stay was placed on that ruling. Then it went to the 9th circuit court and the 3 judge panel unheld the Benitez ruling. Shocker#2.
Wait… This is California! The rule of law is only important when the results move leftward. Solution: The 9th circuit en-banc re-hearing. All the judges on the court got to weigh in and bulldoze the constitutional minded ones.
https://www.cnn.com/2021/11/30/us/california-ban-high-capacity-magazines/index.html
Justice Gorsuch and a Supreme Court majority did the country a major disservice when they ruled that the term “sex” included “transgender” individuals. This redefinition of language which did NOT mean transsexuals when the law was written has led to many negative consequences.
Certainly judicial activism gives lawyers more power than they would otherwise have. The Democrat narrative that the story of America is “Selma, Seneca Falls, and Stonewall” also tends to make the America more about judicial extension of rights than about majority rule. Our Democracy™ is more about results than about democratic processes
I’ve also noticed that the “authoritarianism” that we are supposed to be afraid of has more to do with preserving or not overturning traditional social authority and traditions, than with dictatorial government and high-handed arbitrary exercise of power. I don’t usually buy the theory that what’s going on today is a result of the Frankfurt School, but in this case the connection is hard to deny.
Neo, let us refresh our memory with proposition 209, a ballot initiative that passed in California in 1996. The proposition states
“Proposition 209, a state constitutional amendment placed on the ballot by citizens’ initiative, was approved by California voters five years ago to ban discrimination or preferential treatment based on race, ethnicity and gender in public employment, education and contracting.”
This certainly fits your definition of “targeting identity groups favored by the left”. Yet, as discussed in this document, it has survived multiple court challenges, both in state and federal courts.
https://sor.senate.ca.gov/sites/sor.senate.ca.gov/files/Proposition%20209%20and%20the%20Courts.pdf
It has also survived challenges at the ballot. The latest was proposition 16 on the 2020 ballot. The Initiative was placed on the ballot by an overwhelming majority of the Democrat controlled legislature, but the voters rejected it.
To answer another one of your criticisms, that the state Attorney General will not defend the propositions in court, the three propositions each contain provisions that the proponents can defend them in court.
To those of you who are not “nabobs of negativism” like Neo, /smile, you can contribute to the proponents of the propositions here
https://protectkidsca.com/donate/
BTW, I admit that proposition 209 is routinely ignored in California just as the Supreme Court Asian students lawsuit decision will be ignored by universities across the country. Conservatives have to go about winning elections. This recent article about the University of North Carolina gives us some hope. Even though North Carolina elected a Democrat governor, in a recent election, the voters gave the Republicans a super majority in the legislature. The Republicans have been governing effectively, overriding the Democrat Cooper’s vetoes. As the saying goes in politics, when they feel the heat, they see the light. Whatever the reason the University of North Carolina has done an about face.
https://www.foxnews.com/media/unc-no-longer-consider-race-including-essays-during-admissions
“UNC will no longer consider race, including in essays, during admissions
UNC will no longer use race as a factor in its admissions and hiring decisions, including in application essays”
By Kendall Tietz Fox News
Bob Wilson:
The point is that sometimes the courts overrule a proposition, not that it always happens that way.
I’m explaining that for others, not for trolls,.
It is notable that Proposition 8, that would have banned gay marriage, passed in the same election in which Obama carried California by a huge margin. During the campaign I saw a street-corner demonstration for Prop 8 in Silicon Valley. None of the participants were white.
Neo, I am not clear on the point of your post and your response to my comment. Do you think it is worth the effort to put initiatives like the three Protect Kids CA on the ballot?
As an ex-Californian of over thirty years residency, I would add that the Propositions portion of the ballot was always huge and the propositions were usually confusing, often intentionally misleading.
Some ballot measures which might sound similar actually had opposite effects.
Propositions were supposed to be a great advance for grassroots democracy. Instead they became a tool for left-wing activists and big money fixers.
You say “California courts,” but both of the initiatives you cite were overturned by federal courts, and at least one of them (the gay marriage initiative) went all the way to the Supreme Court. There’s no reason to think that either initiative would have fared differently in enacted (i) in another state or (ii) by a legislature, rather than by initiative.
If the report is that the courts are not a democratic (small d) institution, that is dog bites man.
ey81:
Prop 187’s legal challenges [emphasis mine; remarks in brackets are mine]
In other words, the California state AG made the decision to challenge the referendum passed by a large majority in his own state. The restraining order was in federal court in California.
More:
Same court: United States District Court for the Central District of California.
More:
The 9th Circuit Court of Appeals is in the West – that is, California, Oregon, Washington, Hawaii, and a few other western states – but it never heard the case because the governor of California, Gray Davis, would not defend the appeal and withdrew it, letting the verdict of the lower courts (federal courts in California) stand. Gray Davis was a Democrat. Prop 187 had passed by a vote of about 59% to 41%, so it had strong support from California voters.
Now let’s look at the legal history of Prop 8. The California Supreme Court said it was constitutional, but then cases went forward on the issue to various district courts. One went to the Southern Division of the United States District Court for the Central District of California but was thrown out on a technicality. Another went to the U.S. District Court for the Northern District of California , and this is how it went [emphasis mine]:
So the government officials either fought it or refused to defend it – which was unprecedented in California history. Judge Walker ruled against it, declaring it unconstitutional. The state once again refused to appeal (that’s the AG and the governor). Later, the Ninth Circuit Court of Appeals upheld the ruling that it was unconstitutional. An appeal went to SCOTUS, but the Supreme Court did not hear the case on the merits; the ruling had to do with lack of standing. Other challenges were mounted by Prop 8’s backers, and the California Supreme Court denied them.
I think we can safely say that the two propositions were not defended by California AGs or governors (except for Wilson quite early on), were not upheld by the California courts (except initially for 187), and were not upheld by the federal district courts in California either. The latter are federal courts and apply federal law, but they operate in California and the judges were Californians, and district courts partake of the atmospheres of the regions in which they operate.
huxley:
Agreed. I’m not in favor of government by referendum. You wrote, “Propositions were supposed to be a great advance for grassroots democracy. Instead they became a tool for left-wing activists and big money fixers.” I think that is inevitable. That is why the Founders made us a republic instead of a pure democracy. The Democrats have been trying to change that for quite some time.
Bob Wilson:
I absolutely think it’s worth the effort. However, it may not pass – it depends on whether people understand what is going on regarding parental rights or women’s sports or medical transition of minors, and what the initiatives’ proponents are trying to do regarding those issues. I also think that, if it does pass, the leadership of California will try to oppose it through the mechanism of the legal system. Whether they will succeed, I don’t know, but there’s precedent for the possibility of their succeeding in blocking it and most definitely precedent for their attempting to block it through the courts.
FOAF:
In 2008, Obama was pretending to be against the legalization of gay marriage.
I realize that I am no longer welcome here but I could not resist a comment on Prop 8. That campaign was nasty, the gay mafia seeking out those who had contributed to the fund raining for the proposition. One was a waitress in a Mexican restaurant who was fired after her name was publicized. The federal judge who ruled it unconstitutional retired soon after and married his gay lover.
Apologies for intruding.
I realize that I am no longer welcome here
Mike K:
Not true!
heart
” There’s no reason to think that either initiative would have fared differently in enacted (i) in another state or (ii) by a legislature, rather than by initiative.”
Prop 8 failed at the US Supreme Court because the Court stated that the people arguing in favor of it lacked standing. Only the state, or individuals directly affected by the proposition could have standing to appeal. If a different state has been involved, and that state’s AG had done his job, then standing wouldn’t have been a problem.