Starr on California "amendments":

Defending Proposition 8 in today's California Supreme Court oral argument, Dean Ken Starr agreed that a bare majority of the voters could amend the state constitution to:

(1) Repeal the state constitutional protection of the freedom of speech.

(2) Repeal all rights of gay couples in domestic partnerships, protected both by statute and constitutionalized in judicial decisions. In other words, while he characterizes Prop 8 as "limited," it need not have been limited to be a valid amendment.

(3) Repeal and prohibit all specific antidiscrimination protections for gays and lesbians in all areas: housing, public employment, private employment, education, insurance, public accommodations, and in every other area of life. (That was done by Colorado in its own Amendment 2, struck down in Romer v. Evans under the federal Equal Protection Clause.)

Indeed, one could come up with many other examples of "amendments" under Starr's theory. Mormons can't contribute to political campaigns. Blacks may not marry whites. Immigrant women could be limited to having one baby, or none. These would be amendments and not "revisions" -- requiring more consensus and deliberation -- because they are neither (1) voluminous nor (2) alter the "basic structure of the state government."

Starr would say that at least some of these amendments would be unconstitutional under the federal constitution, which is true (although probably not true of #1 and #2 above). But nothing in the California constitution would prevent a majority from enacting them as amendments.

More on the oral argument later today.

Related Posts (on one page):

  1. The Prop 8 challenge after today's oral argument:
  2. Starr on California "amendments":