including a distinguished chair and dean at UC Berkeley Law School.
This was to support the lawsuit to remove Prop. 8 from the ballot. Since the court declined to rule on that case, these arguments should still be applicable in overturning Prop 8.
http://www.nclrights.org/site/DocServer/2008.07.10.Amicus-Law_Profs.Letter_ISO_Petitioners.pdf?docID=4362I. The Proposed
Fundamental Alteration To The Preexisting Constitutional Framework Is A Revision, Not an Amendment
...although the power of the California initiative is undeniably formidable, it is expressly limited by the California Contitution, and cannot be used to bring about "revisional effect" that is "substantially beyond the system of checks and balances which heretofore has characterized our governmental plan" (McFadden)
...
...In practical effect, <this proposition> would give the electorate the power to override a Court's careful deliberation and analysis of compelling need, and substitute unchecked majoritarian will through the relatively non-deliberative initiative process.
II.
In California's Constitutional Form of Government, Courts Hold the Central Judicial Function of Ensuring The Protection of Basic Civil Rights Against Arbitrary or Prejudicial Action By the Majority.
"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." (In re Marriage Cases)...
"The separation of powers doctrine articulates a basic philosophy of our constitutional system of government; it establishes a system of checks and balances to protect any one branch against the overreaching of any other branch. (Art. IV, V and VI; The Federalist 1788) Of such protections, probably the most fundamental lies in the power of the courts to test legislative and executive acts by the light of constitutional mandate and in particular to preserve constitutional rights, whether of individual or minority, from obliteration by the majority...
Because of its independence and long tenure, the judiciary probably can exert a more enduring and equitable influence in safeguarding fundamental constitutional rights than the other two branches of government, which remain subject to the will of a contemporaneous and fluid majority. (Bixby)
...
The guarantee against the divesting of individual rights by the majority is a bedrock constitutional concept. It is "too clear for argument that constitutional law is not a matter of majority vote.
Indeed the entire philosophy of the Fourteenth Amendment teaches that it is personal rights which are to be protected against the will of the majority. (Lucas) This is because one of the purposes of the Constitution is to "protect minorities from the occaisional tyranny of majorities. No plebiscite can legalize an unjust discrimination." (Hall v. St. Helena Parich School)...
"The limitations imposed by our constitutional law upon the action of the governments, both state and national, are essential to the preservation of public and private rights, notwithstanding the representative character of our political institutions. The enforcement of these limitations by judicial process is the device of self-governing communities to protect the rights of individuals and minorities, as well against the violence of public agents transcending the power of numbers, as against the violence of public agents transcending the limits of lawful authority, even when acting in the name and wielding the force of the government. (Hurtado v. California)
III. The California Supreme Court Repeatedly Has Exercised Its Core Judicial Function To Protect Vulnerable Minorities, A Function That Would Be Severely Compromised By the Proposed Initiative.
A. Perez v. Sharp <challenging the anti-miscegenation statue>
"For many years progress was slow in the dissipation of the insecurity that haunts racial minorities, for there are many who believe that their own security depends on its maintenance. Out of earnest belief, or out of irrational fears, they reason in a circle that such minorities are inferior in health, intelligence, and culture, and that this inferiority proves the need of the barriers of race prejudice" <This is similar to the irrational fear that gay marriage will somehow damage children>
B. Fujii v. California <Challenging the California Alien Land Law which prohibited all aliens who were "ineligible for citizenship" from owning land - discriminating against Japanese>
C. Sail'er Inn, Inc. v. Kirby <challenged a statute discriminating against female bartenders>
...
The passage of years has borne out that each <above> decision was legally, morally, and socially just. Indeed, the concept of seeking justice under the law rather than bending to then-prevailing societal mores is built into our Constitution.
...
The proposed measure seeks to override the Court's substantial deliberation and constitutionally-grounded reasoning regarding equal access to marriage. If approved, it would lay the groundwork for depriving minorities by simple amendment to the state's constitution form any right provided to the rest of society. It proposes to eradicate constitutional protection for members of a vulnerable class with respect to a fundamental right. This revolutionary concept is far beyond the boundaries of constitutional checks and balances, and cannot be viewed as a mere "amendment" to the Constitution.
CONCLUSION
...
...The measure permits "the power of numbers" while "wielding the force of government," to transcend constitutional limits and dispossess susceptible minorities of their fundamental civil rights. It creates a dangerous and powerful foothold toward future abrogation of the rights of other vulnerable members of society.
As such,
the proposed measure is nothing short of a radical revision of our basic governmental plan. It must not go forward inappropriately as an initiative, for it would expose protected individuals to the very discrimination from which they have been freed.