Two Supreme Court Justices Critical of State Initiatives

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February 20, 2010
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State Supreme Court Justice Carlos Moreno expressed concern that fundamental rights can be changed by a simple majority vote through California's initiative process. Moreno was part of the four justice majority that in May 2008 struck down California laws banning same-sex marriages. Six months later, 52% of voters passed Proposition 8, which amended the state constitution to prohibit same-sex marriages. Moreno was the sole dissenter when the court upheld Proposition 8 in May 2009. In his dissent, he wrote that the court's decision "places at risk the state constitutional rights of all disfavored minorities." 

In a recent interview, he commented that voters can be misinformed by initiative campaigns, and that the initiative process, unlike the deliberative legislative process, does not benefit from review by fact-finding committees.

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Within days, Chief Justice Ronald George, in a speech at Stanford Law School, was highly critical of California's initiative process. He suggested reforms, such as prohibiting changes to the constitution through initiatives.

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The initiative process has been significant in shaping and misshaping civil liberties in California. It began as a progressive tool in 1911 to ensure that legislators controlled by the railroads and big business would not block laws benefitting the majority of Californians. The first initiatives granted women the right to vote, established a limit on working hours for women and children, and set a minimum wage.

But inititatives have been used more often to deny rights. In 1920, voters approved three to one the "Alien Land Law" initiative, prohibiting Japanese immigrants from leasing land. Proposition 14 passed by a margin of two to one in 1964. That initiative amended the state constitution to rescind existing fair housing laws and prohibited the legislature from passing future laws to prevent racial discrimination in housing. In 1967, the United States Supreme Court struck down the proposition as a violation of the federal constitution.  In 1994, voters approved Proposition 187, which required state programs, including public schools and public health services, to deny aid to undocumented immigrants.  A court injunction prevented the law from going into effect.  And in 1996, the passage of Proposition 209 outlawed affirmative action in state programs.