Democracy Down a Body Part

I, The Dreamboat of Voting, the VoteBoatNoter, just finished two terms as president of my local chapter of the League of Women Voters.  It’s quite a fun ride, being a local LWV president, but you’re constrained by rules of decorum so you can’t go yelling “woo-hoo” and “aaaaaaah” all the time like you might on a roller coaster.  More to the point, you can’t go around criticizing candidates in elections, and you’re not supposed to whine publicly about the doings or positions of other levels of the League.

As of this week, I’m done with that.  Woo-hoo!

Last week I couldn’t, but now I can tell you how disappointed I am by Justice Elena Kagan’s vote in the Proposition 8 case:  Extremely.  The electorate is a second legislature in California, and its leaders for any particular ballot measure are the people who propose the measure.  There is no set term limit for this type of leadership, because the general rule is that California ballot measures, once enacted, have no expiration date.  One ballot measure can only be erased by another ballot measure.

Denying our legislative leaders the right to defend our laws in federal court disrespected our democracy.  In a nutshell, the Prop. 8 decision simply denied legislative leaders from California the right to defend California laws in federal court.  IMHO, that was wrong.

There was no word from The Court about whether Prop. 8 was constitutional.  And because there has been no ballot measure to erase Prop. 8 (even though a repeal would have passed if put on the ballot), its words are still in state law, ready to be revived in effect if The Court eventually holds that a State may indeed limit marriage to opposite-sex couples.

Justice Kagan and her court not only disrespected our democracy, they visibly injured the oft-derided but generally cherished California initiative.  Aaaaaargh!

I’ve been trying to come up with a good bodily injury description of what five Justices did (over the dissent of four).  They “cut the index fingers off of the initiative?”  (Both right and left fingers, since proponents from either side may no longer raise their fingers to make points in federal court?)  “Cut off its legs,” so it can’t walk up the courthouse steps?  Got another idea?

What makes this particularly gut-wrenching for me (and why I’m only talking about Justice Kagan even though she didn’t write the opinion) is that Justice Kagan is a family friend.  She even came to my nephew’s bar mitzvah!  Oy.

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2 Responses to Democracy Down a Body Part

  1. FG says:

    Sorry to disagree with you about the Initiative process. The Initiative process only exists because our State Legislators often cannot do their job properly. They are the body of government that should be making laws. They are equipped to study the legality of laws before they are passed so that they are properly written. The general public cannot properly do this. They neither have the knowledge nor resources to do this so often bad law are voted on through Initiatives. I believe Proposition 8 to be one of these poorly written laws. The 9th Circuit Court deemed it a bad law. The Supreme Court did not rule on it. They simply said that the proponents of Prop. 8 had no standing and left it up to the discretion of the state to decide. So the 9th Circuit Court ruling against Prop. 8 holds.

    • voteboat says:

      FG, that’s a valid opinion about the initiative process in California.

      A couple of facts in your comment need fixing, though.

      (1) The Supreme Court of the U.S. didn’t exactly leave Prop. 8 up to the discretion of the state to decide. (If that were the case, Californians would have to respect the ruling of the California Supreme Court that Prop. 8 is valid. Or use democracy and vote to get rid of Prop. 8.)

      And (2) because as it turned out the proponents of Prop. 8 didn’t have standing in federal court, you have to treat the federal court proceedings as if the proponents were not there. Since nobody else was appealing the lower court ruling against Prop. 8 in the appeal to the 9th Circuit, it’s as if nobody at all brought an appeal there. And since you can’t have a ruling on an appeal that nobody brought to court, the 9th Circuit ruling against Prop. 8 does not hold. (The ruling is treated as if it doesn’t exist.)

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