With the California Supreme Court’s decision on Prop 8 today, California cemented its transition to a radical form of government unintended by the framers of the U.S. Constitution.

The pain of LGBT couples at the decision is understandable, and should serve as a motivator to defeat this bit of hateful discrimination at the polls in 2010.  From a policy standpoint, today’s decision may actually be a blessing in disguise: a decision to overturn Prop 8 today would have engendered major backlash for decades against a supposedly tyrannical court, while winning a majority in less than two years’ time will have a more unifying effect without the sort of significant blowback a judicial overturn would have produced.

From a broader perspective, however, the Court’s decision is revolutionary in terms of what it means for the structure of our government.  The People of California have long constituted a 4th branch of government in the state through the ballot initiative process.  Until 1978, the People were essentially coequal with the legislature and the CA Supreme Court.

Proposition 13 was the first major change to this delicate 4-way balance of power.  Proposition 13 not only capped property tax increases; more importantly, it forced a 2/3 supermajority not only to pass a budget as in the past, but for revenue increases as well.  Meanwhile, ballot propositions still only required majority vote of the People.

Overnight after the passage of Prop 13, the legislature and the Governor’s Office became subservient branches of the government beneath the increasingly powerful Fourth Branch.  From that point onward, the only restriction on the power of the Fourth Branch was the CA Supreme Court.

In the thirty years that followed, the CA Supreme Court overturned a number of initiatives on the grounds that they violated aspects of the federal constitution or federal law.  The Proposition 8 case marked the first time that the Court found it necessary to rule on the constitutionality of an amendment to the California Constitution that conflicted with a fundamental aspect of that same Constitution, but that did NOT necessarily violate any aspect of federal law.

As such, because Proposition 8 put itself squarely at odds with the previous decision of the CA Supreme Court to see marriage as a fundamental right, today’s decision ultimately was not about gay rights or marriage at all.  Rather, it was about the appropriate balance of power between the Fourth Branch and the Court.  The Court’s decision today was to neuter itself, and declare the decisions of the Fourth Branch the highest law of the land.

As Adam Bonin points out today, that decision may have been the right one under the law, given the nature of California’s initiative process.

Fourth Branch is now King in California.  50%+1 rules.  It is an experiment in governance that has never been tried before in the United States.  And it isn’t working.

The inability of the legislature to raise revenues, coupled with the people’s desire for and enactment of spending programs through the initiative process, has led to a disastrous budget deficit in the State.  Decisions made by the public about budget issues are uninformed, and twisted horribly against the public’s own desires for a progressive government.

From the point of view of minority rights, Adam Bonin’s point bears repeating:

Given this structure, the majority goes, it’s not for courts to say what The People shouldn’t do with that power; the problem is the scope of the power itself.

The whole point of having rights safeguarded by a Constitution interpreted by an independent judiciary is that some things are so fundamental that they ought not be left to the caprice of a fleeting majority vote — if the People wants to amend the Constitution (at least, insofar as most of us understand what a “constitution” is supposed to do), it ought to be a more serious and onerous process than a one-day 50%-plus-one vote.  One wonders what makes it a constitution if it is so easily amendable.  Would the Miranda decision have survived a citizen initiative vote in its wake?  Brown v. Board of Education?

No, those decisions would not have survived popular referenda.  This is, in fact, a common complaint of racist, authoritarian conservatives who despise the Miranda, Loving v. Virginia and Brown v. Board decisions to this day as examples judicial tyranny against the “right” of a prejudiced majority to enshrine discrimination against minorities.  When it comes to eliminating minority rights, Republicans are radical populists.

But these radicals are anything but “conservatives.”  A true Conservative would want to preserve the system of representative Democracy tempered with an independent Judiciary as envisioned over 230 years by the Founders.  It is time that the State of California returned to a respect for that time-tested governmental tradition, and removed some of the disastrous prerogatives that have been accorded to the Fourth Branch.

It is time to end the 2/3 rule that ties the hand of the legislature, and grant to the state judiciary the respect it deserves as a coequal branch of State Government by reforming the initiative process.  Californians straight and gay simply cannot afford another decade of the radicalism to which we have been subjected.