SACRAMENTO — The Proposition 8 court drama is shaping up as a lesson that the U.S. government system's checks and balances isn't just an abstract idea from high school.
In California, more than any other state or country, legal experts say, voters are accustomed to a system of "direct democracy" that has allowed them to adopt or reject a multitude of laws for many years.
After a federal judge struck down Proposition 8 this week as unconstitutional, some voters wondered why U.S. District Court Judge Vaughn Walker had the power to thwart their decision to approve — by 52 percent — Proposition 8's ban on gay marriage.
Walker had that power because that's the American way, said law Professor Da- vid Jung, director of the Center for State and Local Government Law at the University of California Hastings College of the Law.
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"In our system, the last word on the constitutionality of the law rests with the courts," Jung said.
That's the case whether a law is passed by elected officials in a Legislature, Congress or approved by a vast majority of voters.
"In a system of checks and balances," Jung said, "there are going to be occasions where one branch of government is going to be checked. And this is an example of that."
In his ruling Wednesday, Walker found that Proposition 8 violated gay people's federal right to equal protection and due process against government action that deprives them of liberty and rights.
He spent a portion of his opinion addressing the rights of voters.
"An initiative measure adopted by the voters deserves great respect," he wrote. "The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters."
"When challenged, however," Walker said, "the voters' determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough."
He concluded that the Proposition 8 defense, which called only two witnesses during a two-week trial, had failed to make its case that voters had a rational reason — beyond prejudice — to deny gays a fundamental right such as marriage.
Walker isn't likely to have the last word.
Proposition 8 supporters, arguing that his reasoning is flawed, on Thursday appealed his ruling to the 9th Circuit Court of Appeal. From there, it could go to the U.S. Supreme Court.
The judicial process, Jung said, gives people a chance to argue over whether a law, no matter how popular, unfairly deprives people of rights.
Voters' rights are given great weight by courts, Jung said, but so is the Bill of Rights.
"Constitutions are anti-democratic by definition," he said, because they are designed to keep minorities from being stripped of rights.
Joe Mathews, who studies the California initiative system at the New American Foundation, said Californians have cast ballots on sensitive issues before.
"Whenever we vote on something like this," he said, "we're going to run into civil rights questions."
More limits elsewhere
Other states have more limits on initiative measures, such as requiring at least two majority votes by legislators to put a proposal before voters.
California laws written at the state Capitol, unlike initiatives, often are vetted by staff or at hearings, Jung said. A legislator has to weigh whether to pursue a bill that could be on shaky legal ground or has little support from colleagues.
Neither California's attorney general nor the secretary of state, which handle ballot initiatives, pass judgment on the constitutionality of a ballot measure that qualifies for the ballot with enough signatures from voters.
As a result, this isn't the first time California voters have seen a measure they liked criticized by a judge.
In 1994, voters approved Proposition 187, which would have denied public education to undocumented children, even though it was in conflict with a U.S. Supreme Court decision from another state.
A federal judge ruled Proposition 187 largely unconstitutional, and its key provisions never took effect.
In 1964, voters approved a constitutional amendment to nullify a law that prohibited landlords from discriminating against renters based on race, national origin, religion and other characteristics.
Voters approved, by 65 percent, the amendment to get rid of the anti-bias law. But the California Supreme Court struck the amendment as unconstitutional, and the U.S. Supreme Court upheld that decision.