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November 26, 2008

Proposition 8 and ‘the will of the people’—an historical perspective

http://www.jewishjournal.com/opinion/article/proposition_8_and_the_will_of_the_people_an_historical_perspective_20081126

Californians are acutely aware that to many political observers, our initiative and referendum process remains a mystery at best and a menace to democracy at worst.

Take the hard-fought battle over a proposed discriminatory amendment to our state Constitution. It has been called the most bitterly fought issue in the nation's most populous state, generating more intense public interest than the presidential election on the same ballot.

It posed the question, "Can the people override a previous action intended to end unequal treatment between citizens and amend the state Constitution expressly to permit such discrimination to continue?"

Even some minority communities, despite their own bitter experience, split on the issue. After intense internal debate, the Mexican Chamber of Commerce of Los Angeles ultimately endorsed the amendment as a matter of individual rights and personal choice.

Further complicating matters, the amendment itself was confusing, with a counterintuitive "yes is no/no is yes" construction that led some people to vote against their intentions, codifying discrimination instead of eradicating it.

A costly advertising campaign helped ensure the measure's approval, touching off a new round of anger and recriminations when it was immediately challenged in court. After all, the people had spoken. Time for us all to move on.

Astute readers may have guessed that I refer not to Proposition 8, the same-sex marriage prohibition that voters narrowly approved on Nov. 4. I'm recalling instead a similar controversy from another era, one of the seminal anti-discrimination battles waged in California 44 years before.

In November 1964 -- the same presidential election when liberal Lyndon Johnson handily defeated conservative Barry Goldwater -- California voters reversed field and passed Proposition 14, a constitutional amendment intended to counter the Rumford Fair Housing Act enacted the year before. Strongly supported by then-Gov. Pat Brown and carried by Assemblyman W. Byron Rumford, Northern California's first black legislator, Rumford prohibited most racial discrimination in housing.

A well-funded coalition of realtors and landlords, intent on protecting white neighborhoods and their attendant property values from feared black incursions, immediately mounted a campaign to amend the state Constitution and guarantee property owners' continued ability to deny minorities equal access to housing.

After a heated battle, and editorial support from some leading newspapers, the measure passed with 65 percent of the vote. As the head of the archconservative California Republican Assembly explained, in that Cold War era, "the essence of freedom is the right to discriminate.... In socialist countries, they always take away this right in order to complete their takeover."

But Proposition 14's passage was only the beginning, not the end. The measure's opponents were bloodied but unbowed, and quickly filed suit. As the issue ground through the courts into 1965, the Watts Riots soon engulfed South Central Los Angeles, further shaking the city's racial complacency to its very core. By the spring of 1966, the California Supreme Court in a 5-2 decision rejected Proposition 14 as a violation of the state Constitution's equal protection and due process provisions.

The Rumford Act and Proposition 14 became a central issue in Gov. Brown's re-election campaign that year. One would-be Republican challenger, William Penn Patrick, thundered that Brown's "hand-picked Supreme Court" had overturned the will of 4.5 million Californians, declaring that the real issue was not race relations, but the abolition of property rights, "the cornerstone of freedom." Patrick's opponent in the Republican primary, Ronald Reagan, ultimately prevailed and went on to victory in the fall by dodging the issue, taking no stand on the fate of Proposition 14 but supporting modification or repeal of the original Rumford legislation.

Proposition 14's days, however, were numbered. In June 1967, the U.S. Supreme Court again struck down the measure, this time as a violation of federal equal protection and due process guarantees, among the most fundamental of our constitutional rights. Its most fervent supporters vowed to fight on, but by then -- with urban unrest sweeping the nation's major cities -- the more pragmatic conservative politicians increasingly realized it was a lost cause.

Gov. Reagan himself plainly recognized that the times were a-changing. In a spring 1968 press conference, he vowed to veto any legislative attempt to repeal Rumford, and would also oppose any fresh ballot initiatives to eliminate it. The law had taken on symbolic importance with minorities in California, he explained, conceding that "they have got some just grievances."

For all the white-hot political heat generated at the time by the Rumford Fair Housing Act, the efforts to override it and the epic court battles that followed, the matter now seems little more than a curious relic of a bygone age. And so it will be, I believe, with Proposition 8's attempt to similarly deny equal protection and due process to another persecuted minority in California today.

It is barely 40 years since the U.S. Supreme Court struck down the kind of state anti-miscegenation laws that once barred the type of union that produced our current president-elect. Long after the courts have similarly struck down Proposition 8, and same-sex marriage prohibitions have rightly joined Jim Crow laws on the ash heap of history, our children will look back with wonder at how it could ever have been otherwise. May that day come soon.

Zev Yaroslavsky is a member of the Los Angeles County Board of Supervisors and represents the western portion of the county. He was an opponent of Proposition 8.

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