The plot thickens in California

The votes by which the people of California passed Proposition 8, restricting the definition of marriage to a union between a man and a woman, had barely been counted when the ACLU filed a lawsuit. That suit, filed directly with the California Supreme Court, claimed that Prop. 8 would change the California Constitution in so fundamental a way — i.e., taking important rights away from a minority group — that it amounts to a constitutional revision. As such, the theory goes, the legislature was required to pass it before submitting the matter to the voters.

This kind of argument seems like meat and drink for California’s liberal Supreme Court. But my friend Craig Harrison tells me that if that court once again tells the voters “to go to hell,” he expects recall petitions to be circulated for the judges in question. This is permitted under the California Constitution if signatures can be obtained from 20% of the number of people who voted in the last election. Given the 2008 turnout, it might make sense to submit the petition following the primaries that will occur next year.

The petition would not just pertain to the merits of Prop 8, but also to the fact that the state’s judges will have thumbed their noses at the popular will. Perhaps those judges will consider this risk when they take up the matter.

California voters have removed judges before. In 1986, Chief Justice Rose Bird and two other Justices were voted out of office because of their rulings in death penalty cases (Bird had voted against the death sentence in 61 or 61 cases). These were not the result of recall petitions; Justices in California are appointed but must periodically face the voters.

If the Court overturns Prop 8, citizens may not want to wait for that process to play out.

JOHN adds: As I wrote here, I think the arguments being made in favor of overturning Proposition 8 are frivolous. Should the California Supreme Court overturn the voters’ will, which seems extremely unlikely, recall of the offending justices would be appropriate.

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