The electoral contest over Proposition 8 was a low, dishonest affair -- the deception made worse by the fact that so much of it was financed by religious organizations, like the Mormon church and the Catholic Knights of Columbus. Still, if cooler heads on both sides of the question don't exert themselves, things may soon get even nastier.
Political knives already are being sharpened outside the California Supreme Court, which is being asked to hear a number of suits alleging that the measure banning same-sex marriage is unconstitutional. The plaintiffs seeking to invalidate Proposition 8 argue that the measure's implications are so sweeping -- denial of marriage, a fundamental right, to an entire class of Californians -- that it amounts to a "revision" rather than an "amendment" to the state Constitution. The former requires approval by two-thirds of the electorate; the latter can be passed by a bare majority, as was Proposition 8.
The distinction between amendments and revisions is one of the murkiest in California constitutional law, and courts traditionally have been loath to wade into it. That hasn't stopped Proposition 8 supporters from launching a campaign to intimidate the justices, who haven't yet agreed to hear any of the suits.
For The Record
Los Angeles Times Wednesday, November 19, 2008 Home Edition Main News Part A Page 21 Editorial pages Desk 1 inches; 46 words Type of Material: Correction
Revision: Tim Rutten's column Saturday on Proposition 8 said that a revision, as opposed to an amendment, of the state Constitution requires approval by two-thirds of the electorate. It requires approval by two-thirds of the Legislature in addition to approval by a majority of the electorate.
Writing in Sacramento's Capitol Weekly, Jon Fleischman, former executive director of the state Republican Party, growled: "If the court overturns 8, I think you will be able to count the days before a very organized and well-funded recall of the justices voting to do that will begin. Given the passion on this issue, and the financial resources available, a recall of these justices would be on the ballot lickety-split, and then the justices who didn't believe in the primacy of the voters can understand what it feels like to feel their wrath. ... Remember Rose Bird?"
Now there's a nifty bit of intimidation masquerading as a defense of popular sovereignty.
Put aside for a minute the fact that if the U.S. Supreme Court's landmark 1954 ruling in Brown vs. Board of Education had been submitted to a national referendum, swaths of this country probably still would have legally segregated schools. The real point is that California does provide for the direct election of lower court judges and for periodic votes on whether to retain sitting appellate and Supreme Court justices. The assumption is that voters will use their power only to redress instances of misconduct or abuses of power that already have occurred, not as a club to influence justices on questions yet to be decided.
In fact, the state's Code of Judicial Ethics requires all judges "to be faithful to the law regardless of partisan interests, public clamor or fear of criticism." That's why, by custom, appellate and Supreme Court justices do not campaign for their own retention because they can't ethically offer voters anything but a promise to uphold their oath. Trying to frighten justices into doing otherwise with threats of well-financed recall campaigns is a shabby and dangerous bit of bullying.
By the same token, groups of gay activists, angry over Proposition 8's passage, have begun what could amount to a witch hunt if it continues. Using online resources, they've been combing lists of contributors to the Yes on 8 campaign and singling out vulnerable individuals for punishment.
In Sacramento, the artistic director of the California Musical Theater, a nonprofit arts organization, resigned amid boycott threats because of his personal $1,000 contribution to the 8 campaign. In L.A., the manager of the popular El Coyote restaurant, which has a substantial gay and lesbian clientele, was forced to hold a tearful news conference apologizing for the $100 contribution she made in support of the measure. Both people happen to be devout Mormons.
It's one thing to hold demonstrations in front of Mormon temples and Catholic cathedrals, given both denominations' unprecedented intervention as institutions in this election. Our traditional notions of separation of church and state recognize a faith's right to form the consciences of its congregants, who then participate in secular politics as individuals. When churches leap into the process as religious organizations, it raises hackles, and rightly so. It's a distasteful business, but so is singling out individual political donors for retribution and boycotts that deprive them of their living.
A blacklist in the service of a good cause is still a blacklist.