No one should overreact in defense of the initiative process to the court decision allowing the Attorney General to throw out an initiative that is reprehensible and clearly unconstitutional, but we must be sure that the decision is not a step in expanding the power of any official to determine if an initiative is or is not constitutional.
The Sodomite Suppression Act is abominable and it is understandable that Attorney General Kamala Harris wants no part of it. But the initiative process finds itself more and more entangled with politicians’ decisions to perform official acts if the official thinks a proposed or successfully passed measure is unconstitutional. Since the initiative is a tool for the people to bypass politicians this situation is concerning.
Superior Court Judge Raymond M. Cadei relieved the AG of issuing a title and summary on the anti-gay initiative because the proposed initiative was “patently unconstitutional” and defendant, Matthew McLaughlin, defaulted. The Judge wrote, among other concerns, that preparing the title and summary for the measure would be a waste of time and resources. But, the Judge also noted that the initiative could “generate unnecessary divisions among the public.”
That is a curious phrase if allowed to stand alone in some future court challenge because in the rough and tumble world of politics divisions among the public over policy questions are par for the course.
The Sodomite Suppression Act is certainly an extraordinary state of affairs. Perhaps, because this situation is so egregious, this will be the only example that an attorney general will turn to the courts and ask that she or he be excused from performing a duty related to a controversial initiative.
Or just maybe a future attorney general would push the envelope on declaring a proposal unconstitutional. Then the people’s initiative process would be in jeopardy. Let’s hope no precedent has been set in that direction with this action.
It was only a couple of years ago that the attorney general and governor refused to defend an initiative passed by the voters, claiming the measure unconstitutional. In the instance of Proposition 8, which I did not support, I felt at least the proponents should be allowed to defend a measure passed by the voters. If the court determined a measure is unconstitutional then so be it.
As I have said before, courts determining the constitutionality of an initiative always have been the failsafe against initiatives that threaten constitutional rights and protections. We have seen that occur a number of times in California.
The danger lies in letting one or two elected officials declare a measure is unconstitutional and act accordingly. Determining what is constitutional is not always an obvious call. Remember, in many cases five United States Supreme Court justices tell the other four what is or it not constitutional.
In this particular circumstance, however, as long as we have not moved the line on elected officials interfering with the initiative process, the AG and the Judge acted wisely.