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Commentary: Why California court will uphold Prop 8

There've been decades of complaint that the great flood of ballot measures confronting California voters could be reduced and simplified if the state Supreme Court more strictly enforced the constitution's rule against voter initiatives covering more than one subject or revising (not just amending) the constitution.

Almost a decade ago, Chief Justice Ron George showed increasing impatience with the glut of initiative cases landing on the court's docket and hinted that the justices might just be ready to do that. The case argued earlier this month challenging Proposition 8, the initiative passed last November declaring gay marriage invalid in California, gave the court its best chance in years. At the heart of the challenge was the argument that in undermining the constitution's equal protection scheme, Proposition 8 is indeed a revision, not a mere amendment. That could have provided the court a great opportunity to send a signal that future initiatives will be scrutinized more strictly, as courts do in some other states.

But it's not likely to happen. Judging from the drift of the justices' questions, the safest bet – always with cautions about the unpredictability of such wagers – is that the court will uphold Proposition 8. Both George and Justice Joyce Kennard, who were part of the 4-3 majority striking down California's statutory prohibition of same-sex marriages last May, seemed ready to join the three dissenters in that case and uphold the initiative that in effect reversed that ruling. Kennard was a dissenter in a prior case removing an initiative (on redistricting) from the ballot. She also voted against hearing the Proposition 8 challenge.

In his earlier statements, among them remarks at a conference at the University of Santa Clara Law School in 2001, George declared that "the evolution of the initiative process has had a profound effect on the courts," both in the volume of cases and in the task of interpreting measures that, unlike ordinary laws, have no legislative history to guide the judges. Those problems, he indicated then, would lead the court to look more carefully at challenged initiatives.

But in the arguments this month, it was the defender of Proposition 8, Dean Kenneth Starr of the Pepperdine University Law School, best remembered as the special prosecutor who ginned up the case leading to President Bill Clinton's impeachment in 1998, who seemed to have the court's most sympathetic attention.

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