California's Proposition 8 legal challenge harkens back to '60s housing measure

by Aurelio Rojas

McClatchy Newspapers (MCT)

24 February 2009

John Lewis, second from left, and Stuart Gaffney, of San Francisco, cheer with others on the west steps of the state Capitol during a "Love and Marriage Rally for Equality," which challenged Proposition 8's ban on same-sex marriage, February 16, 2009, in Sacramento, California. (Brian Baer/Sacramento Bee/MCT) 

SACRAMENTO, Calif. - As Derald Granberg follows the legal challenge to Proposition 8 now before the California Supreme Court, he thinks back to 1966.

That year, in a case that divided Californians as much as same-sex marriage does today, the court overturned a voter-approved measure that had allowed housing discrimination based on race.

Granberg, now 80, recalls sitting in on meetings during which Thomas Lynch, then California’s attorney general, decided to challenge that measure.

“Here’s an attorney general who’s so convinced that the right thing to do is to challenge something that’s been approved by a 65 percent vote of the public,” said Granberg, who was working back then as a lawyer in the attorney general’s office. “To me, that was really politically courageous.”

Just as Lynch did in the 1960s, Attorney General Jerry Brown is challenging a constitutional amendment approved by voters. But unlike the earlier case, Brown is relying on the state constitution, not the U.S. Constitution, to make his arguments for overturning Proposition 8.

Overwhelmingly approved by voters, Proposition 14 of 1964 invalidated the Rumford Act, which the California Legislature had passed a year earlier. The law had made it illegal for property owners to refuse to rent or sell to people because of their race. The ballot measure overturned the law.

A former actor named Ronald Reagan, who had opposed the federal Civil Rights Act of 1964, was a campaign spokesman.

“If an individual wants to discriminate against Negroes or others in selling or renting his house,” Reagan declared, “he has a right to do so.”

Two years after Proposition 14 passed, the state Supreme Court struck it down, saying it violated the U.S. Constitution. The U.S. Supreme Court later upheld the decision.

Proposition 8 ended same-sex marriage in California last November. Brown is contending that the measure violates the California Constitution’s “inalienable” rights to liberty and privacy that cannot be eliminated without compelling reasons.

He maintains those rights include the right to marry, which same-sex couples had for five months last year. That window opened after the state Supreme Court decided in May to invalidate Proposition 22 of 2000, which had banned same-sex marriage, and it closed when voters passed Proposition 8.

Legal experts note that while Lynch was able to cite protections guaranteed by the equal-protection clause of the U.S. Constitution in opposing Proposition 14, there is no right to same-sex marriage in federal law.

Brown instead is citing the California Supreme Court’s decision to strike down Proposition 22 - the very same decision that Proposition 8 overturned.

Gay-rights lawyers, the city of San Francisco and other local governments challenging Proposition 8 are making a different argument - one with which Brown disagrees. They contend Proposition 8 is not an amendment to the state constitution but an illegal revision that the Legislature should have approved by a two-thirds vote before it was placed on the ballot.

The court is scheduled to hear oral arguments March 5 and render its decision within 90 days.

Whatever the outcome, opponents of Proposition 8 could face an uphill battle. Santa Clara University law professor Gerald Uelmen predicts the court - six Republicans and one moderate Democrat - will reject both arguments.

“The problem for the court is if they agree (the right to same-sex marriage) is so fundamental that to abolish it revises the constitution, they would have to admit they revised the constitution in the first place,” Uelmen said.

But Erwin Chemerinsky, dean of the University of California Irvine School of Law, predicts the case will turn on whether the court believes Proposition 8 violated the state constitution by skirting the Legislature.

“If it concludes, as I believe it should, that this is a revision, then it is unconstitutional,” Chemerinsky said. “The whole point of a constitution is to limit what the majority can do.”

The California Supreme Court generally defers to the will of the people. But in 1966, the court angered the voters who had approved Proposition 14 when it reinstated the Rumford Act.

Named after Assemblyman William Byron Rumford, the first African-American elected to any public office in Northern California, the law was approved by the Legislature in 1963 and signed by Attorney General Brown’s father, then-Gov. Pat Brown.

The Rumford Act ignited a voter backlash, and a year later, the California Real Estate Association put Proposition 14 on the ballot.

Conservative political groups, including the John Birch Society and the California Republican Assembly, endorsed the measure.

Despite a major mobilization by religious groups and liberals - which helped fuel the Berkeley Free Speech Movement - the initiative proved to be overwhelmingly popular. Its passage gave property owners “absolute discretion” in renting or selling.

As with Proposition 8, the passage of Proposition 14 was a bitter blow for opponents. The anger it provoked was so intense it was blamed for helping to ignite the 1965 Watts riots.

Lynch, newly appointed as attorney general to succeed Stanley Mosk after Mosk was nominated for the state Supreme Court, concluded that the initiative violated U.S. constitutional standards.

As in the Proposition 8 case, private lawyers representing Proposition 14’s sponsors were left to defend the measure.

In overturning Proposition 14, the court ruled it violated federally guaranteed rights of equal protection found in the 14th Amendment to the U.S. Constitution. A year later, the U.S. Supreme Court upheld the ruling.

In legal briefs filed in the current case, Proposition 8 opponents contend that if the California Supreme Court had treated Proposition 14 as an amendment deregulating property law - and not as a revision - “this state would surely have seen more constitutional initiatives removing state protections from racial minorities.”

But Andrew Pugno, an attorney for the Yes on 8 campaign, argues that the two cases are different. Moreover, he notes, there is no federal right to same-sex marriage.

Pugno said gay-rights lawyers are resorting to the revision argument because they want to keep the case out of the federal court system, fearing it could reach the U.S. Supreme Court.

“Strategically, they can afford to lose this battle on a state-by-state basis, but they do not want to risk losing in federal court because losing there would be a nationwide loss,” Pugno said.

Jenny Pizer, senior counsel for Lambda Legal, one of the gay-rights groups involved in the case, said the federal issue has not been raised in the case because “this litigation is about California’s rules.”

“California’s Supreme Court has the final responsibility to enforce California’s own rules,” Pizer said. “The proponents of Prop. 8 have ignored California’s rules and hope that California’s Supreme Court will ignore them, too.”

Stephen Barnett, professor emeritus at the University of California Berkeley’s Boalt Hall School of Law, said opponents of Proposition 14 had a stronger case.

“The Rumford Act was a traditional race-discrimination case,” Barnett said. “The issue here is about same-sex marriage, which the federal government does not recognize.”

Proposition 14 played out in the 1966 governor’s race.

William Penn Patrick, who would lose the GOP nomination to Reagan, charged that Pat Brown’s “handpicked Supreme Court” had ignored the will of 4.5million voters.

Reagan promised during the campaign that he would repeal the Rumford Act, Lou Cannon wrote in his 2005 book, “Governor Reagan: His Rise to Power.”

But as the federal government stepped up its enforcement of civil rights laws, support waned for rolling back the clock.

Two years later, at a news conference in 1968, Reagan vowed to veto any legislative attempt to repeal Rumford and said he would oppose any ballot initiative to eliminate it, according to Cannon.

Granberg, who spent his entire 34-year legal career in the attorney general’s office before retiring in 1995 to a 30-acre ranch in El Dorado County, said the equal-protection clause in the U.S. Constitution caused Proposition 14’s demise.

“You had to have a federal issue to get into the U.S. Supreme Court,” he said. “That’s not the case with Proposition 8.”

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