The California Supreme Court decision upholding Proposition 8's same-sex marriage ban illuminated the history and oddities of the state Constitution, provoking renewed discussion about whether voters can too easily amend it.
Whereas the U.S. Constitution has been amended only 27 times, California's top legal document has been altered more than 500 times, often by voter initiative. The state's Constitution is the third longest in the world, exceeded only by those of India and Alabama.
Inscribed within its venerable pages are a ban on gill net fishing, a statement that English is the state's official language, and an assortment of requirements involving liquor and criminal defendants.
Californians can amend their Constitution by obtaining a simple majority vote on an initiative. Chief Justice Ronald M. George observed in Tuesday's ruling that many other state constitutions are more difficult to amend. Although the court did not call for limiting the amendment process, the majority said such a move would be possible and maybe even proper.
As in other states that allow initiatives, California's ballot measures have sometimes been used to take away rights from minorities.
"We have seen a whole bunch of law review articles saying that in general the initiative process has been used more against minority groups than to help them," said Jon W. Davidson, legal director of the gay-rights group Lambda Legal.
California ballots have carried initiatives to ban gays and lesbians from teaching and quarantine people with HIV -- both rejected -- and to permit race discrimination in housing, require English literacy and repeal affirmative action, which passed. The state high court later overturned the housing law on federal constitutional grounds.
In upholding Proposition 8, George disputed the challengers' contention that the measure was unprecedented in taking away a fundamental right from a minority.
He cited a voter-approved 1894 amendment that withdrew the right to vote from anyone not literate "in the English language." The provision remained in effect until 1970, when the state high court struck it down as a violation of the federal Constitution.
"People don't understand that the people of California can change their Constitution," Justice Kathryn Mickle Werdegar said in an interview. The Proposition 8 case "was about procedure," she said.
