Bruce Maiman is a former radio show host who lives in Rocklin. Reach him at brucemaiman@gmail.com.

Viewpoints: Send propositions to court before the ballot

Published: Tuesday, Jul. 16, 2013 - 12:00 am | Page 9A

Pushback against the U.S. Supreme Court's decision on Proposition 8 continues to manifest itself through concerns among gay-marriage opponents ranging from legitimate to legal to ludicrous.

Ben Boychuk's recent column raised fair questions about how the court's ruling might have an impact on the sanctity not of marriage, but of the precepts of religious institutions. I'd like to see us leave those institutions alone rather than see some gay couple sue because a church won't marry them. Perhaps time will iron out those differences. Until then, respect and empathy for religious convictions would be well-advised.

Legal analysts warn that politicians can now block initiatives simply by not defending them, though I suspect those observers are more perturbed about gays marrying than lawmakers not defending.

The legal question is probably more sizzle than steak given that twice in the 100-year history of California initiatives have governors refused to defend initiatives before the courts, as The Bee's Dan Morain pointed out in his Sunday column.

And then there is Folsom attorney Anthony Pugno leading the latest attempt to stop gay marriages in California, filing a petition last week – rejected Monday by the California Supreme Court – to bar county clerk recorders from issuing marriage licenses to same-sex couples. It's hard not to feel pity for a person who won't take "no," "no," and "heck, no" for an answer.

I don't raise these examples to debate them, but to point out that we could've avoided most of them with a simple, single, sensible safeguard.

California's initiative process, designed to give serious political voice to the average citizen, has become a tattered wreck over the years from assaults by monied interests who don't represent the average citizen, and a reckless, short-sighted citizenry whose decisions on ballot measures have put California's government in an ever-tightening straitjacket.

It would be folly to give up California's initiative petition and referendum process, but it would be of equal folly to continue it if every single time we pass a proposition we then wind up in court to determine whether we had a right to do it.

Why don't we go to court first? In Florida, if you propose a statewide referendum, once you've collected 10 percent of the signatures, the process stops. The state certifies the 10 percent, which are required to come from various districts across the state so it's a broad-based effort, and the Florida State Supreme Court then reviews the proposal to ensure it is in no way constitutionally defective. Thus there's no question after the fact as to its legal sufficiency.

Look how clumsy it is to do that process backward, as we do here in California. We say: go collect signatures – and they can all come from just one single county, which is silly in a state as large and as diversified as ours – then have a campaign, vote and, as we see now in Proposition 8, turn ourselves inside out in the courts.

In the past, the courts have invalidated all sorts of propositions that would have, for instance:

• Denied illegal immigrants proper education and health care (1994's Proposition 187);

• Required the state to have open primary elections (1996's Proposition 198);

• Allowed landlords to practice racial discrimination (1964's Proposition 14);

• Held that cable television would either be free or illegal (1964's Proposition 15).

California voters approved each of these, proving that the will of the people can be wrong and should be overturned. If courts can check a legislature, and legislatures are merely an extension of "the people," why can't courts invalidate "the people" when "the people" get it wrong?

A first-year law student could've told you Proposition 187 wouldn't survive a test in the federal courts. It's a simple, settled matter of law. States may not legislate in any area specifically reserved to the federal government, and as the Constitution mandates, immigration is specifically a federal prerogative. Everybody knew that – every judge, lawyer and law student. Yet we wasted all that money, time and emotional energy to pass Proposition 187 so a federal court could spend more taxpayer dollars and throw it out.

How does that make any sense?

We might debate some of the merits of these issues, but why wouldn't we put such matters in the hands of those legally tasked to do so before we pass such referendums?

The Japanese have an expression: Fix the problem, not the blame. In America, we like to fix the blame and not the problem. The Japanese way is better. California's petition process has multiple problems, to be sure, but it seems to me this particular problem is an easy fix. Or should we just continue the ex post facto circus?

Bruce Maiman is a former radio host who lives in Rocklin. Reach him at brucemaiman@gmail.com.

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