(Pix (c) Larry Catá Backer 2014)
Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.
--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,
Grounded in the principles of the sociology of law,
the course has morphed into an effort to introduce students to law as a
self-referencing system with its own particular structures, premises,
constraints and language, with its own logic and taboos and its own
means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice,
Chichester : John Wiley and Sons Ltd, 1999) is then a critical element
in the way in which the legal system (in this case of the United States)
interacts with the world, both as a legal and as a
socio-economic-political actor. The course has also expanded from its
original narrow and technical focus, to a broader focus on principles
and the use of language and logic to build and operate a system of law.
That broadening has made it possible to offer the course not just to
first year law students, but also to graduate students in the social
sciences and in international affairs, as a grounding in the legal
systems that are important in their respective fields.
This and the posts that follow produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.
This post includes a draft of the next chapter of Part III (Institutional Architecture of Law and Governance: The United States and Law Making) -- Chapter 14 (The State and the People; Popular Referenda).
This and the posts that follow produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.
This post includes a draft of the next chapter of Part III (Institutional Architecture of Law and Governance: The United States and Law Making) -- Chapter 14 (The State and the People; Popular Referenda).
Chapter 14The States and the People; Popular ReferendaI. Introduction.We have been considering the way in which law both serves and organizes the government, that is the way that law provides the basis for creating and operating a government, also serves as a tool for constraining it, and is a tool that government can use to manage behaviors among its constituents. We have come to understand the way that law plays a critical role in the management of politics. The resulting legalization of politics provides both a basis for managing the assertions of political authority and the language used to engage in politics. In this chapter we consider the residual power of popular sovereignty to project its power directly. The object of study is the extent of the power of popular referenda to “make” law in states and within the federal system. We also consider the extent to which popular sovereignty can be constrained under the U,S, constitutional system.II. Chapter Readings· Romer v. Evans,[1] 517 U.S. 620 (1996) (equal protection limitations)· City of EastLake v. Forest City Enterprises, Inc.,[2] 426 U.S. 668 (1976) (due process limitations)· K.K. DuVivier, Out of the Bottle: The Genie of Direct Democracy, 70 Alb. L, Rev. 1045 (2007)Optional· Clayton Gillette, Is Direct Democracy Anti-Democratic?, 34 Willamette I. Rev. 609 (1998) READ 620-636
Supreme Court of the United States
Roy ROMER, Governor of Colorado, et al., Petitioners,
v.
Richard G. EVANS et al.No. 94-1039.Argued Oct. 10, 1995.
Decided May 20, 1996.517 U.S. 620, 116 S.Ct. 1620[Available at: http://www.law.cornell.edu/supct/html/94-1039.ZO.html]One century ago, the first Justice Harlan admonished this Court that the Constitution “neither knows nor tolerates classes among citizens.”Plessy v. Ferguson, 163 U.S. 537, 559, 16 S.Ct. 1138, 1146, 41 L.Ed. 256 (1896) (dissenting opinion). Unheeded then, those words now are understood to state a commitment to the law's neutrality where the rights of persons are at stake. The Equal Protection Clause enforces this principle and today requires us to hold invalid a provision of Colorado's Constitution.IThe enactment challenged in this case is an amendment to the Constitution of the State of Colorado, adopted in a 1992 statewide referendum. The parties and the state courts refer to it as “Amendment 2,” its designation when submitted to the voters. The impetus for the amendment and the contentious campaign that preceded its adoption came in large part from ordinances that had been passed in various Colorado municipalities. For example, the cities of Aspen and Boulder and the city and County of Denver each had enacted ordinances which banned discrimination in many transactions and activities, including housing, employment, education, public accommodations, and health and welfare services. Denver Rev. Municipal Code, Art. IV, §§ 28-91 to 28-116 (1991); Aspen Municipal Code § 13-98 (1977); Boulder Rev.Code §§ 12-1-1 to 12-1-11 (1987). What gave rise to the statewide controversy was the protection the ordinances afforded to persons discriminated against by reason of their sexual orientation. See Boulder Rev.Code § 12-1-1 (defining “sexual orientation” as “the choice of sexual partners, i.e., bisexual, homosexual or heterosexual”); Denver Rev. Municipal Code, Art. IV, § 28-92 (defining “sexual orientation” as “[t]he status of an individual as to his or her heterosexuality, homosexuality or bisexuality”). Amendment 2 repeals these ordinances to the extent they prohibit discrimination on the basis of “homosexual, lesbian or bisexual orientation, conduct, practices or relationships.”Colo. Const., Art. II, § 30b.Yet Amendment 2, in explicit terms, does more than repeal or rescind these provisions. It prohibits all legislative, executive or judicial action at any level of state or local government designed to protect the named class, a class we shall refer to as homosexual persons or gays and lesbians. The amendment reads:“No Protected Status Based on Homosexual, Lesbian or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.”Ibid.Soon after Amendment 2 was adopted, this litigation to declare its invalidity and enjoin its enforcement was commenced in the District Court for the City and County of Denver. Among the plaintiffs (respondents here) were homosexual persons, some of them government employees. They alleged that enforcement of Amendment 2 would subject them to immediate and substantial risk of discrimination on the basis of their sexual orientation. Other plaintiffs (also respondents here) included the three municipalities whose ordinances we have cited and certain other governmental entities which had acted earlier to protect homosexuals from discrimination but would be prevented by Amendment 2 from continuing to do so. Although Governor Romer had been on record opposing the adoption of Amendment 2, he was named in his official capacity as a defendant, together with the Colorado Attorney General and the State of Colorado.The trial court granted a preliminary injunction to stay enforcement of Amendment 2, and an appeal was taken to the Supreme Court of Colorado. Sustaining the interim injunction and remanding the case for further proceedings, the State Supreme Court held that Amendment 2 was subject to strict scrutiny under the Fourteenth Amendment because it infringed the fundamental right of gays and lesbians to participate in the political process. Evans v. Romer, 854 P.2d 1270 (Colo.1993)(Evans I). To reach this conclusion, the state court relied on our voting rights cases. . . . , and on our precedents involving discriminatory restructuring of governmental decision making, see, ****. On remand, the State advanced various arguments in an effort to show that Amendment 2 was narrowly tailored to serve compelling interests, but the trial court found none sufficient. It enjoined enforcement of Amendment 2, and the Supreme Court of Colorado, in a second opinion, affirmed the ruling. 882 P.2d 1335 (1994)(Evans II ). We granted certiorari, 513 U.S. 1146, 115 S.Ct. 1092, 130 L.Ed.2d 1061 (1995), and now affirm the judgment, but on a rationale different from that adopted by the State Supreme Court.IIThe State's principal argument in defense of Amendment 2 is that it puts gays and lesbians in the same position as all other persons. So, the State says, the measure does no more than deny homosexuals special rights. This reading of the amendment's language is implausible. We rely not upon our own interpretation of the amendment but upon the authoritative construction of Colorado's Supreme Court. The state court, deeming it unnecessary to determine the full extent of the amendment's reach, found it invalid even on a modest reading of its implications. The critical discussion of the amendment, set out in Evans I, is as follows:* * * *“The ‘ultimate effect’ of Amendment 2 is to prohibit any governmental entity from adopting similar, or more protective statutes, regulations, ordinances, or policies in the future unless the state constitution is first amended to permit such measures.”854 P.2d, at 1284-1285, and n. 26.Sweeping and comprehensive is the change in legal status effected by this law. So much is evident from the ordinances the Colorado Supreme Court declared would be void by operation of Amendment 2. Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.The change Amendment 2 works in the legal status of gays and lesbians in the private sphere is far reaching, both on its own terms and when considered in light of the structure and operation of modern anti-discrimination laws. That structure is well illustrated by contemporary statutes and ordinances prohibiting discrimination by providers of public accommodations. “At common law, innkeepers, smiths, and others who ‘made profession of a public employment,’ were prohibited from refusing, without good reason, to serve a customer.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 571, 115 S.Ct. 2338, 2346, 132 L.Ed.2d 487 (1995). The duty was a general one and did not specify protection for particular groups. The common-law rules, however, proved insufficient in many instances, and it was settled early that the Fourteenth Amendment did not give Congress a general power to prohibit discrimination in public accommodations, Civil Rights Cases, 109 U.S. 3, 25, 3 S.Ct. 18, 31-32, 27 L.Ed. 835 (1883). In consequence, most States have chosen to counter discrimination by enacting detailed statutory schemes. * * * *Colorado's state and municipal laws typify this emerging tradition of statutory protection and follow a consistent pattern. * * * *These statutes and ordinances also depart from the common law by enumerating the groups or persons within their ambit of protection. Enumeration is the essential device used to make the duty not to discriminate concrete and to provide guidance for those who must comply. In following this approach, Colorado's state and local governments have not limited antidiscrimination laws to groups that have so far been given the protection of heightened equal protection scrutiny under our cases. * * * * Rather, they set forth an extensive catalog of traits which cannot be the basis for discrimination, including age, military status, marital status, pregnancy, parenthood, custody of a minor child, political affiliation, physical or mental disability of an individual or of his or her associates---and, in recent times, sexual orientation. * * * *Amendment 2 bars homosexuals from securing protection against the injuries that these public-accommodations laws address. That in itself is a severe consequence, but there is more. Amendment 2, in addition, nullifies specific legal protections for this targeted class in all transactions in housing, sale of real estate, insurance, health and welfare services, private education, and employment.* * * *Amendment 2's reach may not be limited to specific laws passed for the benefit of gays and lesbians. It is a fair, if not necessary, inference from the broad language of the amendment that it deprives gays and lesbians even of the protection of general laws and policies that prohibit arbitrary discrimination in governmental and private settings. See, e.g., Colo.Rev.Stat. § 24-4-106(7) (1988) (agency action subject to judicial review under arbitrary and capricious standard); § 18-8-405 (making it a criminal offense for a public servant knowingly, arbitrarily, or capriciously to refrain from performing a duty imposed on him by law); § 10-3-1104(1)(f) (prohibiting “unfair discrimination” in insurance); 4 Colo.Code of Regulations 801-1, Policy 11-1 (1983) (prohibiting discrimination in state employment on grounds of specified traits or “other non-merit factor”). At some point in the systematic administration of these laws, an official must determine whether homosexuality is an arbitrary and, thus, forbidden basis for decision. Yet a decision to that effect would itself amount to a policy prohibiting discrimination on the basis of homosexuality, and so would appear to be no more valid under Amendment 2 than the specific prohibitions against discrimination the state court held invalid.If this consequence follows from Amendment 2, as its broad language suggests, it would compound the constitutional difficulties the law creates. The state court did not decide whether the amendment has this effect, however, and neither need we. In the course of rejecting the argument that Amendment 2 is intended to conserve resources to fight discrimination against suspect classes, the Colorado Supreme Court made the limited observation that the amendment is not intended to affect many anti-discrimination laws protecting nonsuspect classes, Romer II, 882 P.2d, at 1346, n. 9. In our view that does not resolve the issue. In any event, even if, as we doubt, homosexuals could find some safe harbor in laws of general application, we cannot accept the view that Amendment 2's prohibition on specific legal protections does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the State Constitution or perhaps, on the State's view, by trying to pass helpful laws of general applicability. This is so no matter how local or discrete the harm, no matter how public and widespread the injury. We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.IIIThe Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons. * * * * We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. See, e.g., Heller v. Doe, 509 U.S. 312, 319-320, 113 S.Ct. 2637, 2642, 125 L.Ed.2d 257 (1993).Amendment 2 fails, indeed defies, even this conventional inquiry. First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.Taking the first point, even in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained. The search for the link between classification and objective gives substance to the Equal Protection Clause; it provides guidance and discipline for the legislature, which is entitled to know what sorts of laws it can pass; and it marks the limits of our own authority. In the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous. * * * * . By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law. See Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 181, 101 S.Ct. 453, 462, 66 L.Ed.2d 368 (1980) (STEVENS, J., concurring) (“If the adverse impact on the disfavored class is an apparent aim of the legislature, its impartiality would be suspect”).Amendment 2 confounds this normal process of judicial review. It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. The absence of precedent for Amendment 2 is itself instructive; “[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.”Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38, 48 S.Ct. 423, 425, 72 L.Ed. 770 (1928).It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. “‘Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.’ “Sweatt v. Painter, 339 U.S. 629, 635, 70 S.Ct. 848, 850-851, 94 L.Ed. 1114 (1950) (quoting Shelley v. Kraemer, 334 U.S. 1, 22, 68 S.Ct. 836, 846, 92 L.Ed. 1161 (1948)). Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. “The guaranty of ‘equal protection of the laws is a pledge of the protection of equal laws.’ “Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942) (quoting Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220 (1886)).* * * * *A second and related point is that laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. “[I]f the constitutional conception of ‘equal protection of the laws' means anything, it must at the very least mean that a bare ... desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Department of Agriculture v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 2826, 37 L.Ed.2d 782 1973). Even laws enacted for broad and ambitious purposes often can be explained by reference to legitimate public policies which justify the incidental disadvantages they impose on certain persons. Amendment 2, however, in making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it. We conclude that, in addition to the far-reaching deficiencies of Amendment 2 that we have noted, the principles it offends, in another sense, are conventional and venerable; a law must bear a rational relationship to a legitimate governmental purpose, Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 462, 108 S.Ct. 2481, 2489-2490, 101 L.Ed.2d 399 (1988), and Amendment 2 does not.The primary rationale the State offers for Amendment 2 is respect for other citizens' freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality. Colorado also cites its interest in conserving resources to fight discrimination against other groups. The breadth of the amendment is so far removed from these particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. “[C]lass legislation ... [is] obnoxious to the prohibitions of the Fourteenth Amendment....”Civil Rights Cases, 109 U.S., at 24, 3 S.Ct., at 30.We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause, *636 and the judgment of the Supreme Court of Colorado is affirmed.It is so ordered.The Court has mistaken a Kulturkampf for a fit of spite. The constitutional amendment before us here is not the manifestation of a “‘bare ... desire to harm’ “ homosexuals, ante, at 1628, but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws. That objective, and the means chosen to achieve it, are not only unimpeachable under any constitutional doctrine hitherto pronounced (hence the opinion's heavy reliance upon principles of righteousness rather than judicial holdings); they have been specifically approved by the Congress of the United States and by this Court.In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago, see Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. Whether it is or not is precisely the cultural debate that gave rise to the Colorado constitutional amendment (and to the preferential laws against which the amendment was directed). Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that “animosity” toward homosexuality, ante, at 1628, is evil. I vigorously dissent.ILet me first discuss Part II of the Court's opinion, its longest section, which is devoted to rejecting the State's arguments that Amendment 2 “puts gays and lesbians in the same position as all other persons,” and “does no more than deny homosexuals special rights,” ante, at 1624. The Court concludes that this reading of Amendment 2's language is “implausible” under the “authoritative construction” given Amendment 2 by the Supreme Court of Colorado. Ibid.In reaching this conclusion, the Court considers it unnecessary to decide the validity of the State's argument that Amendment 2 does not deprive homosexuals of the “protection [afforded by] general laws and policies that prohibit arbitrary discrimination in governmental and private settings.” Ante, at 1626. I agree that we need not resolve that dispute, because the Supreme Court of Colorado has resolved it for us.* * * *.Despite all of its hand wringing about the potential effect of Amendment 2 on general antidiscrimination laws, the Court's opinion ultimately does not dispute all this, but assumes it to be true. See ante, at 1626. The only denial of equal treatment it contends homosexuals have suffered is this: They may not obtain preferential treatment without amending the State Constitution. That is to say, the principle underlying the Court's opinion is that one who is accorded equal treatment under the laws, but cannot as readily as others obtain preferential treatment under the laws, has been denied equal protection of the laws. If merely stating this alleged “equal protection” violation does not suffice to refute it, our constitutional jurisprudence has achieved terminal silliness.The central thesis of the Court's reasoning is that any group is denied equal protection when, to obtain advantage (or, presumably, to avoid disadvantage), it must have recourse to a more general and hence more difficult level of political decision making than others. The world has never heard of such a principle, which is why the Court's opinion is so long on emotive utterance and so short on relevant legal citation. And it seems to me most unlikely that any multilevel democracy can function under such a principle.* * * *III turn next to whether there was a legitimate rational basis for the substance of the constitutional amendment-for the prohibition of special protection for homosexuals.FN1 It is unsurprising that the Court avoids discussion of this question, since the answer is so obviously yes. The case most relevant to the issue before us today is not even mentioned in the Court's opinion: In Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), we held that the Constitution does not prohibit what virtually all States had done from the founding of the Republic until very recent years-making homosexual conduct a crime. That holding is unassailable, except by those who think that the Constitution changes to suit current fashions. But in any event it is a given in the present case: Respondents' briefs did not urge overruling Bowers, and at oral argument respondents' counsel expressly disavowed any intent to seek such overruling, Tr. of Oral Arg. 53. If it is constitutionally permissible for a State to make homosexual conduct criminal, surely it is constitutionally permissible for a State to enact other laws merely disfavoring homosexual conduct. (As the Court of Appeals for the District of Columbia Circuit has aptly put it: “If the Court [in Bowers ] was unwilling to object to state laws that criminalize the behavior that defines the class, it is hardly open ... to conclude that state sponsored discrimination against the class is invidious. After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal.”Padula v. Webster, 822 F.2d 97, 103 (1987).) And a fortiori it is constitutionally permissible for a State to adopt a provision not even disfavoring homosexual conduct, but merely prohibiting all levels of state government from bestowing special protections upon homosexual conduct. Respondents (who, unlike the Court, cannot afford the luxury of ignoring inconvenient precedent) counter Bowers with the argument that a greater-includes-the-lesser rationale cannot justify Amendment 2's application to individuals who do not engage in homosexual acts, but are merely of homosexual “orientation.”IIIThe foregoing suffices to establish what the Court's failure to cite any case remotely in point would lead one to suspect: No principle set forth in the Constitution, nor even any imagined by this Court in the past 200 years, prohibits what Colorado has done here. But the case for Colorado is much stronger than that. What it has done is not only unprohibited, but eminently reasonable, with close, congressionally approved precedent in earlier constitutional practice.First, as to its eminent reasonableness. The Court's opinion contains grim, disapproving hints that Coloradans have been guilty of “animus” or “animosity” toward homosexuality, as though that has been established as un-American. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible-murder, for example, or polygamy, or cruelty to animals-and could exhibit even “animus” toward such conduct. Surely that is the only sort of “animus” at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries-old criminal laws that we held constitutional in Bowers. The Colorado amendment does not, to speak entirely precisely, prohibit giving favored status to people who are homosexuals; they can be favored for many reasons-for example, because they are senior citizens or members of racial minorities. But it prohibits giving them favored status because of their homosexual conduct-that is, it prohibits favored status for homosexuality.But though Coloradans are, as I say, entitled to be hostile toward homosexual conduct, the fact is that the degree of hostility reflected by Amendment 2 is the smallest conceivable. The Court's portrayal of Coloradans as a society fallen victim to pointless, hate-filled “gay-bashing” is so false as to be comical. Colorado not only is one of the 25 States that have repealed their antisodomy laws, but was among the first to do so. See 1971 Colo. Sess. Laws, ch. 121, § 1. But the society that eliminates criminal punishment for homosexual acts does not necessarily abandon the view that homosexuality is morally wrong and socially harmful; often, abolition simply reflects the view that enforcement of such criminal laws involves unseemly intrusion into the intimate lives of citizens. * * * *There is a problem, however, which arises when criminal sanction of homosexuality is eliminated but moral and social disapprobation of homosexuality is meant to be retained. The Court cannot be unaware of that problem; it is evident in many cities of the country, and occasionally bubbles to the surface of the news, in heated political disputes over such matters as the introduction into local schools of books teaching that homosexuality is an optional and fully acceptable “alternative life style.” The problem (a problem, that is, for those who wish to retain social disapprobation of homosexuality) is that, because those who engage in homosexual conduct tend to reside in disproportionate numbers in certain communities, see Record, Exh. MMM, have high disposable income, see ibid.; App. 254 (affidavit of Prof. James Hunter), and, of course, care about homosexual-rights issues much more ardently than the public at large, they possess political power much greater than their numbers, both locally and statewide. Quite understandably, they devote this political power to achieving not merely a grudging social toleration, but full social acceptance, of homosexuality. * * * *By the time Coloradans were asked to vote on Amendment 2, their exposure to homosexuals' quest for social endorsement was not limited to newspaper accounts of happenings in places such as New York, Los Angeles, San Francisco, and Key West. Three Colorado cities-Aspen, Boulder, and Denver-had enacted ordinances that listed “sexual orientation” as an impermissible ground for discrimination, equating the moral disapproval of homosexual conduct with racial and religious bigotry. * * * * *That is where Amendment 2 came in. It sought to counter both the geographic concentration and the disproportionate political power of homosexuals by (1) resolving the controversy at the statewide level, and (2) making the election a single-issue contest for both sides. It put directly, to all the citizens of the State, the question: Should homosexuality be given special protection? They answered no. The Court today asserts that this most democratic of procedures is unconstitutional. Lacking any cases to establish that facially absurd proposition, it simply asserts that it must be unconstitutional, because it has never happened before.* * * * *But there is a much closer analogy, one that involves precisely the effort by the majority of citizens to preserve its view of sexual morality statewide, against the efforts of a geographically concentrated and politically powerful minority to undermine it. The Constitutions of the States of Arizona, Idaho, New Mexico, Oklahoma, and Utah to this day contain provisions stating that polygamy is “forever prohibited.” See Ariz. Const., Art. XX, par. 2; Idaho Const., Art.I, § 4; N.M. Const., Art.XXI, § 1; Okla. Const., Art.I, § 2; Utah Const., Art.III, § 1. Polygamists, and those who have a polygamous “orientation,” have been “singled out” by these provisions for much more severe treatment than merely denial of favored status; and that treatment can only be changed by achieving amendment of the state constitutions. The Court's disposition today suggests that these provisions are unconstitutional, and that polygamy must be permitted in these States on a state-legislated, or perhaps even local-option, basis-unless, of course, polygamists for some reason have fewer constitutional rights than homosexuals.* * * * *IVI strongly suspect that the answer to the last question is yes, which leads me to the last point I wish to make: The Court today, announcing that Amendment 2 “defies ... conventional [constitutional] inquiry,”ante, at 1627, and “confounds [the] normal process of judicial review,”ante, at 1628, employs a constitutional theory heretofore unknown to frustrate Colorado's reasonable effort to preserve traditional American moral values. The Court's stern disapproval of “animosity” towards homosexuality might be compared with what an earlier Court (including the revered Justices Harlan and Bradley) said in Murphy v. Ramsey, 114 U.S. 15, 5 S.Ct. 747, 29 L.Ed. 47 (1885), rejecting a constitutional challenge to a United States statute that denied the franchise in federal territories to those who engaged in polygamous cohabitation:“[C]ertainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the co-ordinate States of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement.”Id., at 45, 5 S.Ct., at 764.I would not myself indulge in such official praise for heterosexual monogamy, because I think it no business of the courts (as opposed to the political branches) to take sides in this culture war.But the Court today has done so, not only by inventing a novel and extravagant constitutional doctrine to take the victory away from traditional forces, but even by verbally disparaging as bigotry adherence to traditional attitudes. To suggest, for example, that this constitutional amendment springs from nothing more than “‘a bare ... desire to harm a politically unpopular group,’ “ante, at 1628, quoting Department of Agriculture v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 2826, 37 L.Ed.2d 782 (1973), is nothing short of insulting. (It is also nothing short of preposterous to call “politically unpopular” a group which enjoys enormous influence in American media and politics, and which, as the trial court here noted, though composing no more than 4% of the population had the support of 46% of the voters on Amendment 2, see App. to Pet. for Cert. C-18.)When the Court takes sides in the culture wars, it tends to be with the knights rather than the villeins-and more specifically with the Templars, reflecting the views and values of the lawyer class from which the Court's Members are drawn. How that class feels about homosexuality will be evident to anyone who wishes to interview job applicants at virtually any of the Nation's law schools. The interviewer may refuse to offer a job because the applicant is a Republican; because he is an adulterer; because he went to the wrong prep school or belongs to the wrong country club; because he eats snails; because he is a womanizer; because she wears real-animal fur; or even because he hates the Chicago Cubs. But if the interviewer should wish not to be an associate or partner of an applicant because he disapproves of the applicant's homosexuality, then he will have violated the pledge which the Association of American Law Schools requires all its member schools to exact from job interviewers: “assurance of the employer's willingness” to hire homosexuals. Bylaws of the Association of American Law Schools, Inc. § 6-4(b); Executive Committee Regulations of the Association of American Law Schools § 6.19, in 1995 Handbook, Association of American Law Schools. This law-school view of what “prejudices” must be stamped out may be contrasted with the more plebeian attitudes that apparently still prevail in the United States Congress, which has been unresponsive to repeated attempts to extend to homosexuals the protections of federal civil rights laws, see, e.g., Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments of 1975, H.R. 5452, 94th Cong., 1st Sess. (1975), and which took the pains to exclude them specifically from the Americans with Disabilities Act of 1990, see 42 U.S.C. § 12211(a) (1988 ed., Supp. V).* * *Today's opinion has no foundation in American constitutional law, and barely pretends to. The people of Colorado have adopted an entirely reasonable provision which does not even disfavor homosexuals in any substantive sense, but merely denies them preferential treatment. Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before. Striking it down is an act, not of judicial judgment, but of political will. I dissent.
Supreme Court of the United States
CITY OF EASTLAKE et al., Petitioners,
v.
FOREST CITY ENTERPRISES, INC.No. 74-1563.Argued March 1, 1976.
Decided June 21, 1976.
426 U.S. 668 (1976)[Available at: http://www.law.cornell.edu/supremecourt/text/426/668]Mr. Chief Justice BURGER delivered the opinion of the Court.The question in this case is whether a city charter provision requiring proposed land use changes to be ratified by 55% of the votes cast violates the due process rights of a landowner who applies for a zoning change.The city of Eastlake, Ohio, a suburb of Cleveland, has a comprehensive zoning plan codified in a municipal ordinance. Respondent, a real estate developer, acquired an eight-acre parcel of real estate in Eastlake zoned for “light industrial” uses at the time of purchase.In May 1971, respondent applied to the City Planning Commission for a zoning change to permit construction of a multi-family, high-rise apartment building. The Planning Commission recommended the proposed change to the City Council, which under Eastlake's procedures could either accept or reject the Planning Commission's recommendation. Meanwhile, by popular vote, the voters of Eastlake amended the city charter to require that any changes in land use agreed to by the Council be approved by a 55% Vote in a referendum.[3] The City Council approved the Planning Commission's recommendation for reclassification of respondent's property to permit the proposed project. Respondent then applied to the Planning Commission for “parking and yard” approval for the proposed building. The Commission rejected the application, on the ground that the City Council's rezoning action had not yet been submitted to the voters for ratification.“That any change to the existing land uses or any change whatsoever to any ordinance . . . cannot be approved unless and until it shall have been submitted to the Planning Commission, for approval or disapproval. That in the event the city council should approve any of the preceding changes, or enactments, whether approved or disapproved by the Planning Commission it shall not be approved or passed by the declaration of an emergency, and it shall not be effective, but it shall be mandatory that the same be approved by a 55% Favorable vote of all votes cast of the qualified electors of the City of Eastlake at the next regular municipal election, if one shall occur not less than sixty (60) or more than one hundred and twenty (120) days after its passage, otherwise at a special election falling on the generally established day of the primary election. . . .”Respondent then filed an action in state court, seeking a judgment declaring the charter provision invalid as an unconstitutional delegation of legislative power to the people. While the case was pending, the City Council's action was submitted to a referendum, but the proposed zoning change was not approved by the requisite 55% Margin. Following the election, the Court of Common Pleas and the Ohio Court of Appeals sustained the charter provision.The Ohio Supreme Court reversed. 41 Ohio St.2d 187, 324 N.E.2d 740 (1975). Concluding that enactment of zoning and rezoning provisions is a legislative function, the court held that a popular referendum requirement, lacking standards to guide the decision of the voters, permitted the police power to be exercised in a standardless, hence arbitrary and capricious manner. Relying on this Court's decisions * * * * , but distinguishing James v. Valtierra, 402 U.S. 137, 91 S.Ct. 1331, 28 L.Ed.2d 678 (1971), the court concluded that the referendum provision constituted an unlawful delegation of legislative power.We reverse.IThe conclusion that Eastlake's procedure violates federal constitutional guarantees rests upon the proposition that a zoning referendum involves a delegation of legislative power. A referendum cannot, however, be characterized as a delegation of power. Under our constitutional assumptions, all power derives from the people, who can delegate it to representative instruments which they create. See, E. g., The Federalist No. 39 (v. Madison). In establishing legislative bodies, the people can reserve to themselves power to deal directly with matters which might otherwise be assigned to the legislature* * * * .The reservation of such power is the basis for the town meeting, a tradition which continues to this day in some States as both a practical and symbolic part of our democratic processes. The referendum, similarly, is a means for direct political participation, allowing the people the final decision, amounting to a veto power, over enactments of representative bodies. The practice is designed to “give citizens a voice on questions of public policy.” James v. Valtierra, supra, 402 U.S., at 141, 91 S.Ct., at 1333.In framing a state constitution, the people of Ohio specifically reserved the power of referendum to the people of each municipality within the State.“The initiative and referendum powers are hereby reserved to the people of each municipality on all questions which such municipalities may now or hereafter be authorized by law to control by legislative action . . . .” Ohio Const., Art.II, s 1f.To be subject to Ohio's referendum procedure, the question must be one within the scope of legislative power. The Ohio Supreme Court expressly found that the City Council's action in rezoning respondent's eight acres from light industrial to high-density residential use was legislative in nature. Distinguishing between administrative and legislative acts, the court separated the power to zone or rezone, by passage or amendment of a zoning ordinance, from the power to grant relief from unnecessary hardship.[4] The former function was found to be legislative in nature.[5]IIThe Ohio Supreme Court further concluded that the amendment to the city charter constituted a “delegation” of power violative of federal constitutional guarantees because the voters were given no standards to guide their decision. Under Eastlake's procedure, the Ohio Supreme Court reasoned, no mechanism existed, nor indeed could exist, to assure that the voters would act rationally in passing upon a proposed zoning change. This meant that “appropriate legislative action (would) be made dependent upon the potentially arbitrary and unreasonable whims of the voting public.” 41 Ohio St.2d, at 195, 324 N.E.2d, at 746. The potential for arbitrariness in the process, the court concluded, violated due process.Courts have frequently held in other contexts that a congressional delegation of power to a regulatory entity must be accompanied by discernible standards, so that the delegatee's action can be measured for its fidelity to the legislative will. * * * * Assuming, Arguendo, their relevance to state governmental functions, these cases involved a delegation of power by the legislature to regulatory bodies, which are not directly responsible to the people; this doctrine is inapplicable where, as here, rather than dealing with a delegation of power, we deal with a power reserved by the people to themselves.In basing its claim on federal due process requirements, respondent also invokes Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926), but it does not rely on the direct teaching of that case. Under Euclid, a property owner can challenge a zoning restriction if the measure is “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.” Id., at 395, 47 S.Ct., at 121. If the substantive result of the referendum is arbitrary and capricious, bearing no relation to the police power, then the fact that the voters of Eastlake wish it so would not save the restriction. As this Court held in invalidating a charter amendment enacted by referendum:“The sovereignty of the people is itself subject to those constitutional limitations which have been duly adopted and remain unrepealed.” Hunter v. Erickson, 393 U.S., at 392, 89 S.Ct., at 561.* * * *But no challenge of the sort contemplated in Euclid v. Ambler Realty is before us. The Ohio Supreme Court did not hold, and respondent does not argue, that the present zoning classification under Eastlake's comprehensive ordinance violates the principles established in Euclid v. Ambler Realty. If respondent considers the referendum result itself to be unreasonable, the zoning restriction is open to challenge in state court, where the scope of the state remedy available to respondent would be determined as a matter of state law, as well as under Fourteenth Amendment standards. That being so, nothing more is required by the Constitution.Nothing in our cases is inconsistent with this conclusion. Two decisions of this Court were relied on by the Ohio Supreme Court in invalidating Eastlake's procedure. The thread common to both decisions is the delegation of legislative power, originally given by the people to a legislative body, and in turn delegated by the legislature to a Narrow segment of the community, not to the people at large. In Eubank v. Richmond, 226 U.S. 137, 33 S.Ct. 76, 57 L.Ed. 156 (1912), the Court invalidated a city ordinance which conferred the power to establish building setback lines upon the owners of two-thirds of the property abutting any street. Similarly, in Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 49 S.Ct. 50, 73 L.Ed. 210 (1928), the Court struck down an ordinance which permitted the establishment of philanthropic homes for the aged in residential areas, but only upon the written consent of the owners of two-third of the property within 400 feet of the proposed facility.Neither Eubank nor Roberge involved a referendum procedure such as we have in this case; the standardless delegation of power to a limited group of property owners condemned by the Court in Eubank and Roberge is not to be equated with decision-making by the people through the referendum process. The Court of Appeals for the Ninth Circuit put it this way:“A referendum, however, is far more than an expression of ambiguously founded neighborhood preference. It is the city itself legislating through its voters an exercise by the voters of their traditional right through direct legislation to override the views of their elected representatives as to what serves the public interest.” Southern Alameda Spanish Speaking Organization v. Union City, California, 424 F.2d 291, 294 (1970).Our decision in James v. Valtierra, upholding California's mandatory referendum requirement, confirms this view. Mr. Justice Black, speaking for the Court in that case, said:“This procedure ensures that All the people of a community will have a voice in a decision which may lead to large expenditures of local governmental funds for increased public services . . . .” 402 U.S., at 143, 91 S.Ct., at 1334 (emphasis added)Mr. Justice Black went on to say that a referendum procedure, such as the one at issue here, is a classic demonstration of “devotion to democracy . . . .” Id., at 141, 91 S.Ct., at 1333. As a basic instrument of democratic government, the referendum process does not, in itself, violate the Due Process Clause of the Fourteenth Amendment when applied to a rezoning ordinance. Since the rezoning decision in this case was properly reserved to the People of Eastlake under the Ohio Constitution, the Ohio Supreme Court erred in holding invalid, on federal constitutional grounds, the charter amendment permitting the voters to decide whether the zoned use of respondent's property could be altered.The judgment of the Ohio Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.Reversed and remanded.Mr. Justice POWELL, dissenting.There can be no doubt as to the propriety and legality of submitting generally applicable legislative questions, including zoning provisions, to a popular referendum. But here the only issue concerned the status of a single small parcel owned by a single “person.” This procedure, affording no realistic opportunity for the affected person to be heard, even by the electorate, is fundamentally unfair. The “spot” referendum technique appears to open disquieting opportunities for local government bodies to bypass normal protective procedures for resolving issues affecting individual rights.Mr. Justice STEVENS, with whom Mr. Justice BRENNAN joins, dissenting.* * * * When we examine a state procedure for the purpose of deciding whether it comports with the constitutional standard of due process, the fact that a State may give it a “legislative” label should not save an otherwise invalid procedure. We should, however, give some deference to the conclusion of the highest court of the State that the procedure represents an arbitrary and unreasonable way of handling a local problem.In this case, the Ohio courts arrived at the conclusion that Art. VIII, s 3, of the charter of the city of Eastlake, as amended on November 2, 1971, is wholly invalid in three stages. At no stage of the case has there been any suggestion that respondent's proposed use of its property would be inconsistent with the city's basic zoning plan, or would have any impact on the municipal budget or adversely affect the city's potential economic development.SECTION 3. MANDATORY REFERRAL“That any change to the existing land uses or any change whatsoever to any ordinance, or the enactment of any ordinance referring to other regulations controlling the development of land and the selling or leasing or rental of parkways, playgrounds, or other city lands or real property, or for the widening, narrowing, re-locating, vacating, or changing the use of any public street, avenue, boulevard, or alley cannot be approved unless and until it shall have been submitted to the Planning Commission, for approval or disapproval. That in the event the city council should approve any of the preceding changes, or enactments, whether . . . approved or disapproved by the Planning Commission it shall not be approved or passed by the declaration of an emergency, and it shall not be effective, but it shall be mandatory that the same be approved by a 55% Favorable vote of all votes cast of the qualified electors of the City of Eastlake at the next regular municipal election, if one shall occur not less than sixty (60) or more than one hundred and twenty (120) days after its passage, otherwise at a special election falling on the generally established day of the primary election. Said issue shall be submitted to the electors of the City only after approval of a change of an existing land use by the Council for an applicant, and the applicant agrees to assume all costs of the election and post bond with the city Auditor in an amount estimated by the County Auditor or the Board of Elections proportionate with any other issues that may be on the ballot at the same time. The applicant shall further agree to authorize the City Auditor to advertise, and assume the obligations to pay, for a notice of the posted bond and the requested land use change in a newspaper of general circulation, whose circulation is either the largest, or second to the largest within the limits of the City for two consecutive times, with at least two weeks between notices and a third notice one week prior to the election. Should the land use request not be affirmed by a 55% Favorable vote it cannot be presented again for one full year and a new request must be made at that time.“It shall be the duty of any applicant for a land use change to obtain zoning codes, maps, thoroughfare and sewer plans or advice of the city council and officials and approving bodies for interpretation of this section as they are always available. If this section is violated and a building is under construction or completely constructed it shall be mandatory for the Mayor, Safety Director, Service Director and Building Inspector equally to have the building or structure removed completely within 60 days at the owner(‘)s expense as these officials are charged with the enforcement of this section. It shall be mandatory that the City Council charge and fund the Planning Commission to have on display at all times in the council chambers and available to the public a zone map, showing a legend and summary of zoning regulations by district, (m)ajor use, (m)inimum and maximum lot width and that each district, city park, playground and city lands be accurately located and identified with the date of adoption and the date of revisions to date. Any and all revisions will be posted to the zone map, within 90 days of their occurrence. Maps shall be available to each land owner of the city for a nominal cost not to exceed $2.50 each on demand. Maps shall be available within six months of this charter change.”First, the requirement that the property owner pay the cost of the special election was invalidated in the trial court and in the Ohio Court of Appeals. Second, the Ohio Supreme Court held that the mandatory referendum was “clearly invalid” insofar as it purported to apply to a change in land use approved by the City Council “in an administrative capacity.” Without explaining when the Council's action is properly characterized as legislative instead of administrative, the court then held that even though its approval in this case was legislative, the entire referendum requirement was invalid. The court reasoned:“Due process of law requires that procedures for the exercise of municipal power be structured such that fundamental choices among competing municipal policies are resolved by a responsible organ of government. It also requires that a municipality protect individuals against the arbitrary exercise of municipal power, by assuring that fundamental policy choices underlying the exercise of that power are articulated by some responsible organ of municipal government. McGautha v. California (1971), 402 U.S. 183, 256, 270, 91 S.Ct. 1454, 28 L.Ed.2d 711. The Eastlake charter provision ignored these concepts and blatantly delegated legislative authority, with no assurance that the result reached thereby would be reasonable or rational. For these reasons, the provision clearly violates the due process clause of the Fourteenth Amendment.” 41 Ohio St.2d 187, 196, 324 N.E.2d 740, 746 (1975) (footnote omitted).The concurring opinion expressed additional reasons for regarding the referendum requirement as arbitrary. Speaking for four members of the Ohio Supreme Court, Justice Stern stated:“There can be little doubt of the true purpose of Eastlake's charter provision it is to obstruct change in land use, by rendering such change so burdensome as to be prohibitive. The charter provision was apparently adopted specifically, to prevent multi-family housing, and indeed was adopted while Forest City's application for rezoning to permit a multi-family housing project was pending before the City Planning Commission and City Council. The restrictive purpose of the provision is crudely apparent on its face. Any zoning change, regardless of how minor, and regardless of its approval by the Planning Commission and the City Council, must be approved by a city-wide referendum. The proposed change must receive, rather than a simple majority, at least a 55 percent affirmative vote. Finally, the owner of the property affected is required to pay the cost of the election, although the provision gives no hint as to exactly which costs would be billed to a property owner.“There is no subtlety to this; it is simply an attempt to render change difficult and expensive under the guise of popular democracy.“Even stripped of its harsher provisions the charter provision poses serious problems. A mandatory, city-wide referendum which applies to any zoning change must, of necessity, submit decisions that affect one person's use of his property to thousands of voters with no interest whatever in that property. We need only imagine the adoption of this same provision in a city such as Cleveland. By such a provision, rezoning for a corner gasoline station would require the approval of hundreds of thousands of voters, most of them living miles away, and few of them with the slightest interest in the matter. This would be government by caprice, and would seriously dilute the right of private ownership of property. The law recognizes that the use a person makes of his property must inevitably affect his neighbors and, in some cases, the surrounding community. These real interests are entitled to be balanced against the rights of a property owner; but a law which requires a property owner, who proposes a wholly benign use of his property, to obtain the assent of thousands of persons with no such interest, goes beyond any reasonable public purpose. “Id., at 199-200, 324 N.E.2d, at 748-749.As the Justices of the Ohio Supreme Court recognized, we are concerned with the fairness of a provision for determining the right to make a particular use of a particular parcel of land. In such cases, the state courts have frequently described the capricious character of a decision supported by majority sentiment rather than reference to articulable standards. Moreover, they have limited statutory referendum procedures to apply only to approvals of comprehensive zoning ordinances as opposed to amendments affecting specific parcels. This conclusion has been supported by characterizing particular amendments as “administrative” and revision of an entire plan as “legislative.”In this case the Ohio Supreme Court characterized the Council's approval of respondent's proposal as “legislative.” I think many state courts would have characterized it as “administrative.” The courts thus may well differ in their selection of the label to apply to this action, but I find substantial agreement among state tribunals on the proposition that requiring a citywide referendum for approval of a particular proposal like this is manifestly unreasonable. Surely that is my view.The essence of fair procedure is that the interested parties be given a reasonable opportunity to have their dispute resolved on the merits by reference to articulable rules. If a dispute involves only the conflicting rigs of private litigants, it is elementary that the decision-maker must be impartial and qualified to understand and to apply the controlling rules.I have no doubt about the validity of the initiative or the referendum as an appropriate method of deciding questions of community policy. I think it is equally clear that the popular vote is not an acceptable method of adjudicating the rights of individual litigants. The problem presented by this case is unique, because it may involve a three-sided controversy, in which there is at least potential conflict between the rights of the property owner and the rights of his neighbors, and also potential conflict with the public interest in preserving the city's basic zoning plan. If the latter aspect of the controversy were predominant, the referendum would be an acceptable procedure. On the other hand, when the record indicates without contradiction that there is no threat to the general public interest in preserving the city's plan as it does in this case, since respondent's proposal was approved by both the Planning Commission and the City Council and there has been no allegation that the use of this eight-acre parcel for apartments rather than light industry would adversely affect the community or raise any policy issue of citywide concern I think the case should be treated as one in which it is essential that the private property owner be given a fair opportunity to have his claim determined on its merits.I therefore conclude that the Ohio Supreme Court correctly held that Art. VIII, s 3, of the Eastlake charter violates the Due Process Clause of the Fourteenth Amendment, and that its judgment should be affirmed.__________Out of the Bottle: The Genie of Direct Democracy,K.K. DuVivier70 Alb. L, Rev. 1045 (2007)(some footnotes renumbered and omitted)__________Is Direct Democracy Anti-Democratic?Clayton Gillette34 Willamette I. Rev. 609 (1998)(footnotes omitted or renumbered)__________III. The States and the People; Popular ReferendaWe have been examining the structure of the U.S. government and the way that it is specified and managed through a language of law rather than that of politics. More specifically, we have been considering the way in which law structures the systems within which politics is organized in the United States. That has involved a closer look at the way that the “higher law” of the United States, its Constitution, both constrains politics, and changes its character. That change in character is bound up in the last topic of section II of our materials―the role/rule of law. We have begun to see how the relationship between law and the state in the United States, one in which law resides both outside (common, customary, and natural law along with private governance systems) and inside (statutes, administrative regulation, assessment regimes) the government. That dual positioning of law creates a political culture in which both obedience to law (as the expression of popular will) and the use of law to constrain the institutions created to express the popular will exist simultaneously, and in which the language of politics is sometimes expressed in law and the language of law is sometimes understood in political terms. Lastly, we have come to understand that the enormity of national political power may itself be constrained, though to what extent is still unresolved, by the higher powers of international law and custom, expressed either as the consensus of states (through treaties and conventions) or through the customary expectations of the international community (jus cogens[26]―slavery, protection of ambassadors, etc.).
We have come to understand the fundamental character of the division of governmental power in the United States. All political authority (other than that retained by the people as ultimate “owners” of national political power is divided horizontally among three branches of government (and a fourth ostensibly subordinate administrative branch) and vertically between the general government in Washington, D.C. and the governments of the states of the Union. This division of governmental power is founded on three great legal principles of political organization―separation of powers, checks and balances and federalism. There principles, in turn, are meant to further the two core principles of American political organization, two core principles may be at their heart be (consciously) irreconcilable―that power must be fractured to reduce the likelihood of tyranny by any individual or institution of government, but also that government must be organized to be efficient, to enable its institutions to meet the core objectives of government. The anti-tyranny principle is furthered by power fracture within the general government and federalism between the general government and those of the states. The efficiency principle is also furthered by the separation of powers (but here understood as granting to each branch the power to assert its authority fully). Both efficiency and anti-tyranny principles are furthered by checks and balances―a notion that both encourages cooperation between branches to engage successfully in the business of government, but also as an anti-tyranny mechanism to the extent that no branch can govern alone (for long) without the cooperation of one or more of the other branches, or of the states.
In the process of considering first the issue of separation of powers between the president and Congress in the Steel Seizure Case,[27] we were introduced to the two principle approaches to constitutional interpretation used by the Supreme Court to interpret and apply the structural limits of the Constitution on the powers of each branch and the need and form of necessary cooperation among them. These two forms―formalism and functionalism, serve as the basis for a number of more precise interpretive tools that judges apply (and argue about the legitimacy of each)―textualism, original understanding and living constitution approaches to reading the text of the Constitution. Formalism tends to privilege the text of the document over the intent of its authors or the objectives of the provision. It suggests a narrow role for the courts―to read the text as it is written and to leave to the political branches to sort out the brilliance or folly of the words they have imposed on the people as law. Functionalism tends to view text as a gateway that is meant to serve the intent of the drafters and the objectives of the statute. Text might have to be reworked, as necessary, to ensure that the words of the specific provision at issue do not interfere or impede the objectives of the statute or the intention of its authors. (e.g., Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law,[28] edited by Amy Gutmann (Princeton, N.J.: Princeton University Press, 1997) (reviewed here); William Michael Treanor, Against Textualism, Northwestern Law Review 103:983-1006 (2009).
We also considered the complexity of separation of powers and checks and balances within a government that has vastly outgrown the original conception of state power envision in the late 18th century. For that purpose we considered the way in which the Courts have read into the U.S.: Constitution a structural role for the emerging administrative state that arose in its modern forms from the late 19th and 20th centuries. What we discovered was the malleability of American legal constitutional structuralism. What sounded like a rigid commitment to separation of powers, checks and balances in the Steel Seizure Case, becomes more protean concept when extended to the issue of the quasi-judicial, quasi-legislative and quasi-executive functions of administrative agencies. In place of the formalism of the structural division of authority among the three principal branches of the general government, the Supreme Court has read into the Constitution a much more flexible and forgiving power to amalgamate all power in administrative agencies, (Mistretta v. U.S.)[29] as long as they remain nominally subordinate to the principal branches of government and as long as there is some (barely) intelligible principal (Whitman v. American Trucking Associations)[30].
Today we consider the residual power of the people to make law, within the context of the federalism constraints of assertions of governmental power. Despite the organization of the general government as a Republic in which all power is exercised through representatives of the people, states have sought to permit people a direct role in the operation of the state. Our first reading, K.K. DuVivier, “Out of the Bottle: The Genie of Direct Democracy,” 70 Alb. L, Rev. 1045 (2007) sets the stage for our discussion: “In the late 1800s, the Progressives unleashed the genie of direct democracy―the citizen-initiated referendum or initiative―as an alternative method of amending a state constitution or creating state level legislation.” (K.K. DuVivier, supra, 1045).
Direct democracy remains popular in states that permit its exercise. A report issued by the University of Southern California Initiative and Referendum Institute[31] described the use of direct democracy in the states between 19900 and 2012:A total of 2,421 state-level initiatives have been on the ballot since the first ones went before the voters in Oregon in 1904, and 984 (41 percent) have been approved.
The modern initiative movement began in the late 1970s with California’s tax-cutting Proposition 13. Initiative use exploded in the following decades, reaching a peak of 377 in the 1990s, 177 of which were approved. The first decade of the new century saw a total of 373 initiatives, just shy of the historical record, with 157 passing.
Twenty-four states have had at least one initiative during the period 1904-2012. Oregon continues to be the overall leader, with 363 initiatives. California is second with 352. Colorado (218), North Dakota (183), and Arizona (174) round out the top five. (Initiative and Referendum Institute, Initiative Use[32] (Jan. 2013).DuVivier argues an irony:When they introduced the initiative process, the Progressives believed that representative government had failed because legislatures were controlled by special interests. Through the initiative genie, citizens hoped to flex their muscle and regain control of their governments. Because the initiative process allowed citizens to register their opinions by direct votes, it promised to be a valuable alternative to representative government, which had become tainted by the influences of privileged interests and partisan politics.
Genie magic, however, tends to come with unintended consequences, and modern initiative practice has not lived up to the promise of being corruption free. Because initiatives are drafted by individuals or small groups, rather than by bodies of representatives elected by the people, they are often controlled by special interests. (DuVivier, supra, 1046-47).Others have taken a more positive view of direct democracy. (Arthur Lupia and John C. Matsusaka, “Direct Democracy: New Approaches to Old Questions,”[33]Annu. Rev. Polit. Sci. 2004. 7:463–82 (2004))The picture that emerges is of the initiative as a majoritarian device. As discussed above, the initiative has pushed policy in a conservative direction over the past several decades. If we put the facts together, the implication is that, over the past several decades, legislatures have tended to deliver policy to the left of majority opinion, and the initiative has provided the majority with a way to correct what they see as the mistakes of their representatives. (Ibid., 478).An indeed, and in a more complex way, it is true that “The initiative is a direct democracy idea from Switzerland. In the 1800s, the initiative process became a movement adopted by American Populist and Progressive political groups to challenge special interest groups. Today both special interest and grass roots groups use initiatives.” (Oregon State Bar, Democracy in Action, Direct Democracy―Initiatives and Referendum)[34]. But, of course, the American republican system was also created to constrain the excesses of majoritarian desires (Federalist 63)[35]―that was one of the points of separation of powers and the encouragement of faction in politics and fracture in governmental structures. Clayton Gillette, “Is Direct Democracy Anti-Democratic?,” 34 Willamette L. Rev. 609, 616-620 (1998) Yet Republican government is itself both founded on popular consent and meant to serve all of the people, not transient majorities to the detriment of the rest. And so people, and courts, worry about the capture of the direct democracy process by special interests its adverse effects on minorities, and that direct democracy is inherently illegitimate because it lacks the deliberative and informed approach to legislation that can be exercised by an elected legislature. (Gillette, supra). It is on that tension that popular democracy is both lauded and feared.
In the United States, popular democracy at the federal level would present substantial difficulties. It would represent a tear in the fabric of a tightly constructed multi-level governance system of fractured but representative power in which the people play a vital but secondary role. They may reject the government by drawing a new constitution or they may restrain their representatives through direct lobbying or more directly by voting them in and out of office. In states, there is greater flexibility. But here the greatest structural constraints on the power of direct democracy exercised at the state level lies with the U.S. Constitution, and the premises of federalism. The two cases we review, City of East Lake v. Forest City Enterprises, Inc.,[36] 426 U.S. 668 (1976) (due process) and Romer v. Evans,[37] 517 U.S. 620 (1996) (equal protection limitations), suggest the structural constraints of direct democracy.
City of East Lake v. Forest City Enterprises, Inc.,[38] 426 U.S. 668 (1976) provides a useful starting point. It suggests the rule of law framework within which direct democracy may be exercised in states. The case touched on the tension between the legislative power of the masses represented by popular referenda and the property rights of individuals.The city of Eastlake, Ohio, a suburb of Cleveland, has a comprehensive zoning plan codified in a municipal ordinance. Respondent, a real estate developer, acquired an eight-acre parcel of real estate in Eastlake zoned for “light industrial” uses at the time of purchase.In May 1971, respondent applied to the City Planning Commission for a zoning change to permit construction of a multi-family, high-rise apartment building. The Planning Commission recommended the proposed change to the City Council, which under Eastlake’s procedures could either accept or reject the Planning Commission’s recommendation. Meanwhile, by popular vote, the voters of Eastlake amended the city charter to require that any changes in land use agreed to by the Council be approved by a 55% Vote in a referendum. (Ibid).The City Council approved the Planning Commission’s recommendation but refused to move forward until after the voter referendum. The real estate developer sued for a declaratory judgment[39] that the referendum provision was an invalid delegation of legislative power to the people. The U.S. Supreme Court reversed a decision by the Ohio Supreme Court which had declared the provision invalid. The U.S.. Supreme Court noted that this argument of invalid delegation inverted the logic of the American system.The conclusion that Eastlake’s procedure violates federal constitutional guarantees rests upon the proposition that a zoning referendum involves a delegation of legislative power. A referendum cannot, however, be characterized as a delegation of power. Under our constitutional assumptions, all power derives from the people, who can delegate it to representative instruments which they create. See, e. g., The Federalist No. 39 (v. Madison). In establishing legislative bodies, the people can reserve to themselves power to deal directly with matters which might otherwise be assigned to the legislature. (Eastlake, supra).The Ohio constitution reserved a power of direct democracy in the voters of Ohio (Ohio Const., Art. II, § 1f). It follows that the people of Ohio could exercise this authority to the full extent permitted under the Ohio and Federal Constitutions.
The Supreme Court also disposed of the Ohio Supreme Court’s conclusion that the reservation of direct democratic power constituted a violation of due process under the U.S. Constitution Amendment 14. First, the U.S. Supreme Court rejected the contention that something like the non-delegation doctrine applicable to delegations of legislative power to administrative actions applied to limit the power of popular referenda. (Eastlake, supra; on the non-delegation’s doctrine, see notes Elements of Law 3.0 Notes and Readings III-B (Institutional Architecture of Law and Governance: The United States and Law Making―The Administrative Branches: The Non-Delegation Doctrine, An Introduction)).[40]Second it noted that popular referenda were subject to the same due process limitations as other forms of legislation:If the substantive result of the referendum is arbitrary and capricious, bearing no relation to the police power, then the fact that the voters of Eastlake wish it so would not save the restriction. As this Court held in invalidating a charter amendment enacted by referendum: “The sovereignty of the people is itself subject to those constitutional limitations which have been duly adopted and remain unrepealed.” Hunter v. Erickson,[41]393 U.S., at 392, 89 S.Ct., at 561. (Ibid).But the real estate developer did not raise this issue. “If respondent considers the referendum result itself to be unreasonable, the zoning restriction is open to challenge in state court, where the scope of the state remedy available to respondent would be determined as a matter of state law, as well as under Fourteenth Amendment standards. That being so, nothing more is required by the Constitution.” (Ibid).
That issue was raised in Romer v. Evans,[42] 517 U.S. 620 (1996), an interesting case not only for its elaboration on structural legal constraints on direct democracy exercised by the citizens of states, but also because it suggests the way in which federalism itself constrains the courts in the way they may interpret the law of states when applying federal constitutional law. The central issue of the case was the extent of the power of the citizens of the State of Colorado to use their power of direct democracy under the legal constraints that the federal constitution has built into the political system of the nation.
The facts are these: In 1992 the citizens of Colorado approved, in accordance with their rules for direct democratic action, what the Colorado courts described as “Amendment 2”. The referendum and Amendment 2 represented a reaction against a number of anti-discrimination laws that had been passed by Colorado municipalities against discrimination in housing, employment, education, public accommodation, and health and welfare services. The anti-discrimination laws in themselves did not cause the reaction―it was their extension to discrimination against sexual minorities, that is because these laws extended protection against discrimination to persons by reason of their sexual orientation.
Amendment 2 was meant to repeal these ordinances to the extent they extended such coverage on the basis of sexual orientation. It provided as follows;“No Protected Status Based on Homosexual, Lesbian or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.” (Romer, supra).
Upon its adoption, litigation was commenced to declare the provision invalid. The trial court granted a preliminary injunction (Colo. Rule. Civ. Proc. 65) and an appeal taken to the Colorado Supreme Court, which sustained the injunction and remanded[43] the case for further proceedings in the trial court. The Colorado Supreme Court held that Amendment 2 infringed on the rights of sexual minorities to participate in the political process under the federal Supreme Court’s case law interpreting the federal constitution’s prohibitions against racial discrimination in voting. (Evans v. Romer,[44] 854 P.2d 1270 (Colo.1993) (Evans I)). On remand the trail court sustained the injunction and the Colorado Supreme Court affirmed. The federal Supreme Court granted certiorari[45] (permitted under 28 U.S.C. § 1257)[46] and affirmed the decision of the Colorado Supreme Court, but on different grounds. (Romer, supra). Two aspects of that holding are of importance to our understanding of the application of law within the domestic legal orders of the United States. The first concerns the division of authority over the interpretation of statutes within a federal system. The second is the construction of constraints on popular power from the text of the “higher law” of the federal constitution.
With respect to the first issue, the Supreme Court acknowledges both the constraints of federalism on the judicial power of the general government’s courts, and the relationship between those constraints and the foundational power of the Supreme Court over the interpretation of the structural constraints on state courts and governments. The initial issue confronting the Supreme Court is a matter of the interpretation of the constitutional law of the State of Colorado―specifically the meaning of hat issue arose because the defense of the measure was based on a construction of its meaning (“The State’s principal argument in defense of Amendment 2 is that it puts gays and lesbians in the same position as all other persons. So, the State says, the measure does no more than deny homosexuals special rights.” Romer, supra Part II). “We rely not upon our own interpretation of the amendment but upon the authoritative construction of Colorado’s Supreme Court.” (Romer, supra).
From the Colorado Supreme Court, Justice Kennedy, writing for the U.S. Supreme Court majority, described the effect of Amendment 2:“The ‘ultimate effect’ of Amendment 2 is to prohibit any governmental entity from adopting similar, or more protective statutes, regulations, ordinances, or policies in the future unless the state constitution is first amended to permit such measures.” 854 P.2d, at 1284-1285, and n. 26.
Sweeping and comprehensive is the change in legal status affected by this law. So much is evident from the ordinances the Colorado Supreme Court declared would be void by operation of Amendment 2. Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies. (Romer, supra).The Supreme Court characterized the effects as touching on the public and private spheres. It effectively treats sexual orientation as a special class beyond the political power of states to legislate, unlike other conditions that might acquire preferences via anti-discrimination statutes. Thus, Amendment 2 is read not merely to prevent the extension of nondiscrimination laws to sexual minorities, but to deny to state, county and local governments the power to extend such anti-discrimination provisions to sexual minorities, even if they wanted to.It is a fair, if not necessary, inference from the broad language of the amendment that it deprives gays and lesbians even of the protection of general laws and policies that prohibit arbitrary discrimination in governmental and private settings. . . . At some point in the systematic administration of these laws, an official must determine whether homosexuality is an arbitrary and, thus, forbidden basis for decision. Yet a decision to that effect would itself amount to a policy prohibiting discrimination on the basis of homosexuality, and so would appear to be no more valid under Amendment 2 than the specific prohibitions against discrimination the state court held invalid. (Romer, supra).
In effect, Amendment 2 created structural constraints on government that singled out one particular group for special treatment (no access to the political process to convince legislatures that anti-discrimination laws are a good thing) while leaving the political process intact for other groups (age, military service, marital status, political affiliation, etc.). (Romer, supra).In any event, even if, as we doubt, homosexuals could find some safe harbor in laws of general application, we cannot accept the view that Amendment 2’s prohibition on specific legal protections does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the State Constitution or perhaps, on the State’s view, by trying to pass helpful laws of general applicability. This is so no matter how local or discrete the harm, no matter how public and widespread the injury. (Romer, supra).It is in light of this interpretation of Amendment 2, the Supreme Court was required to read its own interpretation of the 14th Amendment’s prohibitions in Section III of the majority opinion. The majority opinion starts with the general principles of 14th Amendment principles as applied to limit the power of states to legislate.The Fourteenth Amendment’s promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons. * * * * We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. (Romer, supra).The majority applies this standard to Amendment 2 and finds that it fails to meet the very deferential “rational basis”[47] test. It proffers two reasons. “First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.” (Romer, supra).
With respect to the first basis the court determined that there was no rational connection between the classification adopted and the object to be attained.The search for the link between classification and objective gives substance to the Equal Protection Clause; it provides guidance and discipline for the legislature, which is entitled to know what sorts of laws it can pass; and it marks the limits of our own authority. In the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous. (Romer, supra).The rational basis test in this form ensures that the classifications are not drawn for the purpose of disadvantaging a group singled out for special, if adverse, treatment. Rationality, in effect, posits that classification and disadvantage as essentially incidental to the object of the legislation. Where the object of the legislation is itself the disadvantage, then rationality disappears and it follows that the statute no longer affords equal protection. It is precisely this targeted disadvantage that the Supreme Court reads into the effect of Amendment 2. “It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.” (Ibid). Indeed, the majority suggests, prior Supreme Court precedent suggests the need for special review of discriminatory effects that are of an unusual character. “The absence of precedent for Amendment 2 is itself instructive; “[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.” Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38, 48 S.Ct. 423, 425, 72 L.Ed. 770 (1928).” (Ibid).
It is the unusual character of this legislative intervention in positive discrimination that most affects the majority’s conclusion. Here, resort to custom and tradition is used to buttress constitutional analysis.It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. . . . Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.(Ibid).Note that the focus on constitutional and legislative tradition is not focused on laws that had discriminated against sexual minorities (e.g., there had been a long tradition of criminalizing a variety of sexual acts ascribed to sexual minorities until the early 21st century). Instead, the traditions referenced focused on the ability of even discriminated groups to invoke the political process to change custom and tradition of accepted discriminatory treatment. These are citizenship rights rather than substantive rights to protection against discrimination. Thus, while the Court was not suggesting that Colorado must adopt anti-discrimination provisions protective of sexual minorities, Colorado may not create constitutional or legal structures that deny any of its citizens the right to invoke the political process to seek such legal protections, discretionary protections the adoption of which would not offend the federal constitution if adopted.
The issue, then, touches not just on the scope of the 14th Amendment, but also on the general structures of rule of law governance at the core of the American political system. It is that that issue, the effect of the principle of rule of law on the construction of the structural limitations of the federal constitution on expressions of popular will, that suggests the last point made by the majority―the premise that in a rule of law state, dislike of a particular minority who other are citizens of the United States and of the states of their residence, is an illegitimate basis for law making.Even laws enacted for broad and ambitious purposes often can be explained by reference to legitimate public policies which justify the incidental disadvantages they impose on certain persons. Amendment 2, however, in making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it. We conclude that, in addition to the far-reaching deficiencies of Amendment 2 that we have noted, the principles it offends, in another sense, are conventional and venerable. (Ibid).
Justice Scalia, in dissent, also invokes traditions. But in this case, the reference is to the long and until recently well accepted tradition that permitted the state to burden sexual minorities with substantial legal disabilities, including, at one point, severe criminal penalties. (e.g., Larry Catá Backer, “Raping Sodomy and Sodomizing Rape: A Morality Tale About the Transformation of Modern Sodomy Jurisprudence,”[48] 21 American Journal of Criminal Law 37 (1993).)The Court has mistaken a Kulturkampf for a fit of spite. The constitutional amendment before us here is not the manifestation of a “‘bare ... desire to harm’ ” homosexuals, ante, at 1628, but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws. (Romer, supra Scalia dissenting).Justice Scalia notes that the Supreme Court had, only years earlier, agreed that the sexual practices of sexual minorities could be the basis of special treatment. If, in fact, states were free to discriminate against sexual minorities, as they had for centuries, then they should be able to create structural barriers in law to prevent anyone from liberating sexual minorities from these traditional discriminatory patterns, even if the people and legislatures of states or localities might think it a good idea.If it is constitutionally permissible for a State to make homosexual conduct criminal, surely it is constitutionally permissible for a State to enact other laws merely disfavoring homosexual conduct. . . . And a fortiori it is constitutionally permissible for a State to adopt a provision not even disfavoring homosexual conduct, but merely prohibiting all levels of state government from bestowing special protections upon homosexual conduct. (Ibid).Indeed, Justice Scalia argues, precisely because sexual minorities may be able to marshal voter power as citizens of particular locations (cities or counties, etc.), then the State might protect itself from these local voter majorities by invoking the power of a majority of state voters to prohibit any majority of voters from re-thinking their legislation touching on the legality of people to discriminate against sexual minorities.The problem (a problem, that is, for those who wish to retain social disapprobation of homosexuality) is that, because those who engage in homosexual conduct tend to reside in disproportionate numbers in certain communities, . . . , and, of course, care about homosexual-rights issues much more ardently than the public at large, they possess political power much greater than their numbers, both locally and statewide. Quite understandably, they devote this political power to achieving not merely a grudging social toleration, but full social acceptance, of homosexuality. (Ibid).The question Justice Scalia poses, then, is which set of democratic rights out to be privileged. For him, the power of majorities to assert structural legal limits on minorities may be superior to the power of citizens to enjoy an equal access to political engagement. The majority disagreed. Both majority and dissent appealed to tradition. But each applied to a distinct tradition―Justice Scalia to traditions of discrimination against disfavored groups; Justice Kennedy to traditions protecting the rights of citizenship and rule of law. The federal constitution may protect both in theory. But in practice the Supreme court must balance the respective costs of sustaining other with reference to the protection of the fundamental principles of the American political order. And that balancing, as Justice Scalia’s dissent evidences nicely, can shift dramatically within a very short time. Indeed, relatively soon after Romer even Justice Scalia’s appeal to Supreme Court precedent protecting the right of states to discriminate against sexual minorities was substantially undermined. Seventeen years after the decision in Bowers v, Hardwick, the Supreme Court directly overruled that decision in Lawrence v. Texas,[49] 539 U.S. 558 (2003), which held that anti-sodomy laws are unconstitutional.IV. ProblemClashing Gun Control Initiatives: In 2014 the State of Washington put two initiative measures on the ballot. Initiative 594, would impose background checks of gun buyers that go beyond federal law, requiring them in private sales and at gun shows. Initiative 591, would forbid state expansion of background checks beyond the current federal law.Initiative Measure No. 591[50]Ballot TitleFull TextInitiative Measure No. 591 concerns firearms.This measure would prohibit government agencies from confiscating guns or other firearms from citizens without due process, or from requiring background checks on firearm recipients unless a uniform national standard is required.Should this measure be enacted into law?[ ] Yes[ ] NoExplanatory Statement[51]Written by the Office of the Attorney GeneralThe Law As It Presently ExistsBoth state and federal laws require that certain sellers of firearms conduct background checks of buyers before selling firearms to determine whether the buyer can legally possess a firearm. Washington law makes it illegal for convicted felons to possess firearms. It also makes it illegal for certain others to possess firearms, including people who: (1) have been convicted of certain misdemeanors; (2) have been issued certain types of restraining orders; (3) have been found not guilty of a crime by reason of insanity; (4) have been found mentally incompetent; or (5) have certain criminal charges pending. It is a felony to deliver any firearm to any person reasonably believed to be prohibited from owning or possessing a firearm.State laws governing background checks vary from state to state. In Washington, a background check is only required to buy a pistol, and only if the seller is a firearms dealer. Washington law also provides an exception to the background check requirement for certain sales of pistols from dealers. If the buyer has already been issued a concealed pistol license, then no further background check is required. Also, a firearms dealer can complete a sale if the sheriff or police chief fails to provide the results of a background check within five business days. That five day period can be extended if the buyer does not have a valid permanent Washington driver’s license or identification card, or has lived in Washington for less than ninety days.Washington law allows Washington residents to buy rifles and shotguns in other states. And it allows residents of other states to buy rifles and shotguns in Washington. In both cases, the sale must comply with federal law. The sale must also be legal under the laws of both Washington and the other state.Federal law also requires background checks on potential buyers of firearms. This federal requirement applies only when the seller is a firearms dealer. Unlike Washington law, the federal requirement applies to all types of firearms, not just pistols. Federal law does not require a background check if the buyer holds a concealed pistol license. Also, federal law allows a firearms dealer to complete a sale if the results of a background check are not returned within three business days.The federal and state constitutions prohibit governments from confiscating private property, including firearms, without providing due process of law. In general, due process requires a lawful basis for taking the property, notice of the government’s action, and an opportunity to explain why property should not be forfeited. Court proceedings are examples of ways in which due process is provided. Washington law authorizes the forfeiture of firearms in a number of situations. Washington courts may order forfeiture of firearms found in the possession of people who cannot legally possess firearms or who have criminal proceedings pending. Courts may also order forfeiture of firearms that have been found concealed on a person who does not have a permit to carry a concealed pistol. Firearms used in the commission of certain crimes may also be forfeited. And firearms can be forfeited if found in the possession of a person arrested for a felony in which the firearm was used or displayed.The Effect Of The Proposed Measure If ApprovedThis measure would prohibit government agencies from requiring background checks on the recipient of a firearm unless a uniform national standard is required.This measure would also state that government agencies may not confiscate firearms from citizens without due process.Fiscal Impact StatementWritten by the Office of Financial ManagementInitiative 591 would have no direct impact on state and local revenues, costs, expenditures or indebtedness.General AssumptionsThe federal and state constitutions prohibit governments from confiscating private property, including firearms, without due process of law. Therefore, it is currently unlawful for any government agency to confiscate guns or other firearms from citizens without due process.The Brady Handgun Violence Prevention Act of 1993 (Brady Act), Public Law 103-159, is a required uniform national standard for a background check on the recipient of a firearm.Current state law regarding a background check on the recipient of a firearm would remain in effect.The effective date of the initiative is December 4, 2014.
Protect your rights, vote yes on 591
Initiative 591 protects against illegal search and seizure, preventing politicians and bureaucrats driven by an anti-rights agenda from depriving citizens of their property without due process.
The gun prohibition lobby responsible for draconian anti-civil rights and self-defense laws in New York, Washington, D.C. and Chicago, is now targeting Washington citizens, using money and resources from out of state.
No gun confiscation without due process
We saw firearms confiscated without due process in New Orleans after Hurricane Katrina. Some people never got their property back. We are seeing confiscation of firearms in Connecticut, New York, New Jersey and California.
This affects you if you own a gun, or not
In Washington State, we have already seen legislation proposed to allow police to enter your home and search your bedroom for lawfully owned firearms without a warrant or court order. Government agencies are collecting record amounts of your personal data, raising grave privacy concerns.
591 does not prevent background checks
591 protects background check uniformity and prevents unwarranted intrusion by the state into temporary firearm loans to friends or in-laws. It stops the state from creating a universal gun registry that could enable future confiscation. Maintaining balance between privacy rights and public safety is what 591 is about. It is supported by a diverse bipartisan coalition of law enforcement professionals, collectors, competitors, and sportsmen and women who believe that nobody’s privacy should be for sale to the gun prohibition lobby.
Initiative 591 will make it easier for guns to fall into the wrong hands by weakening our criminal background check system on gun sales.
No on 591: We Need Stronger, Not Weaker, Criminal Background Checks on Gun Sales
591 would roll back Washington's existing - and already inadequate - background check laws to conform to weak federal standards. 591 is a dangerous step backward. It locks in loopholes that allow criminals, domestic abusers and other dangerous individuals to buy guns without a criminal background check. Washington voters have a choice this election: close loopholes that allow criminals and people with severe mental illnesses to buy guns without criminal background checks, or roll back standards.
No on 591: Trust Washington Voters, Not Congress
591 ties the hands of Washington voters and locks us into a federal standard. Washington voters should not hand over our ability to protect our lives and property to a Congress who has failed to act.
No on 591: Protect Safety, Not Criminals
No one wants to see criminals and other dangerous people continue to have easy access to firearms. Criminal background checks work. Since its inception, the background check system has blocked 2.2 million gun sales to prohibited people. We should be strengthening the system, but 591 does the opposite. It makes it easier for dangerous individuals to get guns.
This is why a broad coalition of law enforcement, gun violence survivors, domestic violence survivors and faith leaders encourage you to vote No on Initiative 591.
Alan Gottlieb, Chair, Protect Our Gun Rights Coalition; Bill Burris, Spokesman, Washington State Law Enforcement Firearms Instructors Association; Brian Blake, State Representative, Democrat, six term veteran legislator; John Rodabaugh, President, Washington Arms Collectors; Julianne Versnel, Publisher, Second Amendment Foundation’s Woman & Guns Magazine; Phil Shave, Retired Chief, Law Enforcement State Parks
Contact: (425) 454-4911; info@YesOn591.org; www.YesOn591.org
Cheryl Stumbo, Jewish Federation Shooting Survivor; Jolaine Marr, Domestic Violence Survivor; Faith Ireland, retired State Supreme Court Justice; Robert Brauer, Lifetime Member of NRA, Gun Owner; Kim Abel, President, League of Women Voters of Washington; Becky Roe, former prosecutor, past Washington Association of Justice President
Contact: (206) 659-6737; info@wagunresponsibility.org; www.NoOn591.com
__________Initiative Measure No. 594[52]Ballot TitleFull TextInitiative Measure No. 594 concerns background checks for firearm sales and transfers.This measure would apply currently used criminal and public safety background checks by licensed dealers to all firearm sales and transfers, including gun show and online sales, with specific exceptions.Should this measure be enacted into law?[ ] Yes[ ] NoExplanatory StatementWritten by the Office of the Attorney General[53]The Law As It Presently ExistsBoth state and federal laws require that certain sellers of firearms conduct background checks of buyers before selling firearms to determine whether the buyer can legally possess a firearm. Washington law makes it illegal for convicted felons to possess firearms. It also makes it illegal for certain others to possess firearms, including people who: (1) have been convicted of certain misdemeanors; (2) have been issued certain types of restraining orders; (3) have been found not guilty of a crime by reason of insanity; (4) have been found mentally incompetent; or (5) have certain criminal charges pending. It is a felony to deliver any firearm to any person reasonably believed to be prohibited from owning or possessing a firearm.State laws governing background checks vary from state to state. In Washington, a background check is only required to buy a pistol, and only if the seller is a firearms dealer. Washington law also provides an exception to the background check requirement for certain sales of pistols from dealers. If the buyer has already been issued a concealed pistol license, then no further background check is required. Also, a firearms dealer can complete a sale if the sheriff or police chief fails to provide the results of a background check within five business days. That five day period can be extended if the buyer does not have a valid permanent Washington driver’s license or identification card, or has lived in Washington for less than ninety days.Washington law allows Washington residents to buy rifles and shotguns in other states. And it allows residents of other states to buy rifles and shotguns in Washington. In both cases, the sale must comply with federal law. The sale must also be legal under the laws of both Washington and the other state.Federal law also requires background checks on potential buyers of firearms. This federal requirement applies only when the seller is a firearms dealer. Unlike Washington law, the federal requirement applies to all types of firearms, not just pistols. Federal law does not require a background check if the buyer holds a concealed pistol license. Also, federal law allows a firearms dealer to complete a sale if the results of a background check are not returned within three business days.Washington’s sales tax and use tax generally apply to sales of firearms. Sales tax does not apply to casual and isolated sales by sellers who are not engaged in business. This means, for example, that a sale of a firearm by a private individual who is not engaged in business is not subject to sales tax. Sales by firearms dealers or other businesses are subject to tax.The Effect Of The Proposed Measure If ApprovedThis measure would apply the background check requirements currently used for firearm sales by licensed dealers to all firearm sales and transfers where at least one party is in Washington. Background checks would thus be required not only for sales and transfers of firearms through firearms dealers, but also at gun shows, online, and between unlicensed private individuals. Background checks would be required for any sale or transfer of a firearm, whether for money or as a gift or loan, with specific exceptions described below. Background checks would be required whether the firearm involved is a pistol or another type of firearm. Violations of these requirements would be crimes.The measure would establish a number of exceptions to the background check requirement. A background check would not be required to transfer a firearm by gift between family members. The background check requirement also would not apply to the sale or transfer of antique firearms. It also would not apply to certain temporary transfers of a firearm when needed to prevent imminent death or great bodily harm. Background checks would not be required for certain public agencies or officers acting in their official capacity, including law enforcement or corrections agencies or officers, members of the military, and federal officials. Federally licensed gunsmiths who receive firearms solely to service or repair them would not be required to undergo background checks.Certain other temporary transfers of a firearm would also not require a background check. These include temporary transfers between spouses, and temporary transfers for use at a shooting range, in a competition, or for performances. A temporary transfer to a person under age eighteen for hunting, sporting, or education would not require a background check. Other temporary transfers for lawful hunting also would not require a background check.A person who inherited a firearm other than a pistol upon the death of its former owner would not be required to undergo a background check. A person who inherited a pistol would either have to lawfully transfer the pistol within 60 days or inform the department of licensing that he or she intended to keep the pistol.Firearms could only be sold or transferred through licensed firearms dealers. If neither party to the sale or transfer of a firearm was a firearms dealer, then a firearms dealer would have to assist in the sale or transfer. Before a sale or transfer could be completed, a firearms dealer would perform the background check on the buyer or recipient of the firearm. If the background check determined that the buyer or recipient of the firearm was ineligible to possess a firearm, the firearms dealer would return the firearm to the seller or transferor. The firearms dealer could charge a fee for these services.Firearms dealers could not deliver any firearm to a buyer or recipient until receiving background check results showing that the buyer or recipient can legally possess the firearm. But a firearms dealer could deliver a firearm if background check results were not received within ten business days (as opposed to the five business days currently allowed to conduct the check). If the buyer or recipient did not have a valid permanent Washington driver’s license or identification card, or had been a Washington resident for less than 90 days, then the time period for delivery of a pistol would be extended from ten days to 60 days, the same as under current law.If a firearms dealer violates this measure, his or her license could be revoked. The violation would also be reported to federal authorities.Sales tax would not apply to the sale or transfer of firearms between people who are not licensed firearms dealers, so long as they comply with all background check requirements. Using a licensed firearms dealer to assist with such sales or transfers would not result in sales or use tax.Fiscal Impact StatementWritten by the Office of Financial ManagementInitiative 594 is expected to have minimal impact on state and local revenues. The net change cannot be estimated because the impact depends upon optional fees that may be charged by licensed firearms dealers. State expenditures for the Department of Licensing may total an estimated $921,000 over the next five years, which includes one-time implementation costs, ongoing expenses related to complying with current state pistol transfer laws and new license oversight requirements. State expenditures for enforcing the measure are estimated to be less than $50,000 per year. Local government expenditures are estimated to be less than $50,000 per year.General AssumptionsThe effective date of the initiative is December 4, 2014.Estimates are described using the state’s fiscal year (FY) of July 1 through June 30. FY 2015 is July 1, 2014, to June 30, 2015.State Revenue AssumptionsLicensed firearms dealers may charge a fee for the administrative costs of facilitating the background check and private sale or transfer of a firearm.Licensed firearms dealers would be required to pay the state business and occupation tax on any fees charged.Licensed firearms dealers would not be required to collect sales or use tax when facilitating a private sale or transfer of a firearm.Consistent with current law, a person would continue to be required to pay state use tax when purchasing or transferring a firearm in a private transaction.State RevenuesCurrent law requires licensed firearms dealers to collect use tax from the Washington buyer in an interstate firearm sale or transfer. Under Initiative 594 (I-594) licensed dealers would no longer be required to collect use taxes on interstate sales or transfers. State revenues would be decreased minimally by the loss of use taxes on interstate sales or transfers no longer collected by licensed dealers.I-594 authorizes licensed dealers to charge a fee to cover the administrative cost of facilitating background checks and private firearm sales and transfers. State revenues would be increased by the business and occupation taxes due on any fees charged by licensed firearms dealers. It is unknown how many licensed dealers will charge a fee or what any particular licensed dealer may set as the fee.Therefore, I-594 would have a minimal impact on state revenues. The change in revenues cannot be estimated without information on whether licensed dealers would charge administrative fees, at what amount fees might be set, how many licensed dealers may charge administrative fees or the number of firearm purchases made each year where use taxes would be due.State Expenditure AssumptionsAll private pistol sales and transfers would be reported to the Department of Licensing (DOL).Private sales or transfers of firearms other than pistols would not be reported to DOL.DOL would process more pistol sales and transfer reports each year than it currently does.DOL would print more pistol sales and transfer forms each year than it currently does.DOL would modify the Business and Professions Firearm Database System to account for private pistol sales and transfers reported by licensed firearms dealers.DOL would need additional staff for the increased pistol transfer workload and program administration, and to develop and manage new reporting requirements and license revocation authority.About 90 percent of all licensed firearms dealers would report private pistol sales and transfers using paper forms.Based on historical pistol sales and transfer data from DOL, the number of pistol sales and transfers reported to the agency would increase an average of 20 percent annually.State ExpendituresLicensing and Record KeepingCurrent law requires licensed firearms dealers to record all pistol sales or transfers with DOL. Firearms dealers may use a paper form or an electronic system to report the sale or transfer. In 2013, 89 percent of all licensed dealers used only paper forms.Under I-594, licensed firearms dealers would continue to be required to report pistol sales and transfers to DOL. In addition, licensed firearms dealers would be required to report all private pistol sales and transfers they facilitate. The initiative includes exceptions to this requirement, such as transfers between certain family members. Private sales or transfers of firearms other than pistols would not be reported to DOL by a licensed firearms dealer.Currently, a person who privately sells or transfers a pistol to another person may voluntarily record the change of ownership with DOL. The seller or transferor reports the change of ownership to DOL on a paper form. In August 2013, DOL began tracking the number of reported private pistol sales and transfers. From August 2013 to May 2014, DOL received 1,684 private sales and transfer reports.Under I-594, the majority of private pistol sales and transfers would be reported to DOL through licensed firearms dealers. In an attempt to estimate the fiscal impact of this change, DOL reviewed data in Colorado on the number of private sales and transfers of pistols through licensed dealers. In 2014, Colorado implemented a law requiring all private pistol sales and transfers be processed through a licensed firearms dealer. The dealer must also conduct a background check on the buyer. Based on data from Colorado, DOL could receive about 12,900 private pistol sales and transfer reports in 2015.DOL would experience increased expenditures and costs for printing and distributing more pistol sales and transfer forms, modifying the Business and Professions Firearm Database System, hiring a minimal number of staff to handle the additional paper forms submitted by dealers, hiring minimal program administration staff for developing and managing new reporting requirements and license revocation authority, and for rule making. The estimated total cost for these activities over the next five years is $921,000. Table 1 shows DOL estimated costs over the next five fiscal years. [omitted]Law EnforcementI-594 would create two new crimes. A person who knowingly violates Section 3 of the initiative could be subject to a gross misdemeanor, punishable under Chapter 9A.20 RCW. A person who knowingly violates Section 3 a second time, or more, is subject to a class C felony, punishable under Chapter 9A.20 RCW.The sentence for the class C felony created in the initiative has a standard range of 0 to 12 months. Sentences of fewer than 12 months are typically served in county jail facilities. There would be no increase in state expenditures in cases where the sentence is served in a county facility.Depending on the circumstances of the case, a judge may impose an aggravated exceptional sentence. If this results in a sentence that exceeds 12 months, the time would be served in a state prison facility and the state would experience increased costs. Assuming the number of cases where an aggravated exceptional sentence would be imposed does not exceed four per year, the Department of Corrections estimates the cost to be less than $50,000 a year.Local Government Revenue AssumptionsForty cities currently impose a local business and occupation tax. Licensed firearms dealers located in these cities would be required to pay a local business and occupation tax on any fees charged to facilitate a private firearm sale or transfer.Licensed firearms dealers would not be required to collect sales or use tax when facilitating a private sale or transfer of a firearm.Consistent with current law, a person would continue to be required to pay state use tax when purchasing or transferring a firearm in a private transaction.Local Government RevenuesLocal government revenues would be increased by the business and occupation taxes owed on any fees charged by a licensed firearms dealer facilitating background checks and firearms transfers in the 40 cities currently imposing a local business and occupation tax. Licensed dealers are not required to charge a fee. If there is a fee, it is set by the dealer. It is unknown how many dealers would charge a fee or what a particular dealer might set as the fee. Local government revenues would be decreased by the loss of use taxes no longer required to be collected by licensed firearms dealers.Therefore, I-594 would have a minimal impact on local government revenues. The change in revenues cannot be estimated without information on whether licensed dealers would charge administrative fees, at what amount fees might be set, how many licensed dealers may charge administrative fees or the number of firearm purchases made each year where use taxes are due.Local Government Expenditure AssumptionsNo data are available to estimate the number of potential cases that would be investigated and charged for violations of I-594.Other criminal justice cost data are available. These data were used to set a maximum number of cases that could occur statewide before local governments experience significant cost increases.The maximum number of gross misdemeanor cases is 400 each year.The maximum number of felony cases is 65 each year.Local Government ExpendituresDistrict and municipal courts (counties and cities) may experience increased costs for hearing additional gross misdemeanor cases. Superior courts (counties) may experience similar increased costs for hearing additional felony cases. The Administrative Office of the Courts estimates the fiscal impact of these cases to be less than $50,000 per fiscal year if there are fewer than 400 additional gross misdemeanor cases statewide each year and fewer than 65 additional felony cases statewide each year.Arguments For and Against
Initiative 594 will ensure everyone in Washington State passes the same background check, no matter where they buy the gun and no matter whom they buy it from.
Initiative 594: Criminal Background Checks Save Lives
Criminal background checks reduce access to guns for criminals, domestic abusers and people with severe mental illnesses. But current law only requires background checks for gun sales at licensed dealers. This means that anyone - including dangerous criminals - can purchase guns at gun shows or online with no background check. 594 closes this loophole by requiring all gun sales - including those at gun shows or over the internet – go through a criminal background check.
Initiative 594: Simple and Effective
594 prevents dangerous people from having easy access to guns. It strengthens existing law by ensuring private gun sales go through the same process people use when buying from a licensed gun dealer. Since its inception, the background check system has blocked 2.2 million gun sales to prohibited people. In states that require background checks on all gun sales, 38% fewer women are shot to death by their partners and 39% fewer police officers are killed with handguns.
Initiative 594: Reasonable Exceptions
Gifts between family members, antique sales, and loans for self-defense, hunting or sporting are exempt from background checks.
Initiative 594: Broad Support
Endorsed by law enforcement officers, Republican and Democratic prosecutors, League of Women Voters of Washington, National Physicians Alliance Washington Chapter, Washington Federation of Teachers and newspapers across the state.
Rank and file law enforcement oppose 594
Initiative 594 is an unfunded mandate that diverts scarce law enforcement resources away from keeping violent criminals off our streets making us all less safe. Do you want sex offenders released from crowded prisons to make room for people convicted of family-firearm transfer violations?
594 is 18 pages of costly and confusing regulatory excess
594 is punitive to lawful firearms owners. Proponents want you to “pass it so you can find out what’s in it.” Before you vote, consult your attorney to see how it criminalizes your behavior. Want to lend your sister-in-law a gun to protect herself? Want to loan your adult sons shotguns to go hunting? 594 makes you a criminal! A police officer who loans a personal firearm to a fellow officer would face criminal prosecution.
Criminals will violate 594 like they break other laws
Criminals will still acquire firearms where they do now: the black market, straw purchasers, theft and illicit sources like drug dealers.
594 creates a “universal” government database of all lawful handgun owners. We deserve the protection of a well-written background check law that protects the right of privacy for lawful firearms owners.
Don’t be fooled by emotional and false statements
We all want guns out of the hands of violent criminals and the dangerously unstable who are a threat to people like us. But this is not the way to do it. You can’t change criminal behavior by criminalizing lawful behavior.
Dan Satterberg, King County Prosecutor, Republican; Mark Roe, Snohomish County Prosecutor, Democrat; John Lovick, Snohomish County Executive, former Snohomish County Sheriff; Faith Ireland, retired State Supreme Court Justice; Cheryl Stumbo, Jewish Federation Shooting Survivor; Robert Brauer, Lifetime Member of NRA, Gun Owner
Contact: (206) 659-6737; info@wagunresponsibility.org; www.wagunresponsibility.org
Craig Bulkley, President, Washington Council of Police and Sheriffs (WACOPS); Christopher Hurst, State Representative, Democrat, 25-year veteran Police Commander; Mark Pidgeon, President, Hunters Heritage Council; Alan Gottlieb, Founder, Second Amendment Foundation; Anette Wachter, Member, Medal Winner, United States National Rifle Team; Ozzie Knezovich, Sheriff, Spokane County
Contact: (425) 454-4911; info@WeCare2014.org; www.WeCare2014.org
___________Consider the following questions:1. If both measures pass, would they be reconcilable? How would you go about making that reconciliation identifying the techniques for statutory reading we have discussed. Who in the first instance ought to have the obligation to attempt that reconciliation, the legislature? The governor? The courts? Why?2. If Both measures together are nor reconcilable what should be the consequence?
[1]http://www.law.cornell.edu/supct/html/94-1039.ZO.html[2]http://www.law.cornell.edu/supremecourt/text/426/668[3]As adopted by the voters, Art. VIII, s 3, of the Eastlake City Charter provides in pertinent part.[4]By its nature, zoning “interferes” significantly with owners' uses of property. It is hornbook law that “(m)ere diminution of market value or interference with the property owner's personal plans and desires relative to his property is insufficient to invalidate a zoning ordinance or to entitle him to a variance or rezoning.” 8 E. McQuillan, Municipal Corporations s 25.44, p. 111 (3d ed. 1965). * * * *[5]The power of initiative or referendum may be reserved or conferred “with respect to any matter, legislative or administrative, within the realm of local affairs . . . .” 5 E. McQuillan, Municipal Corporations s 16.54, p. 208 (3d ed. 1969). However, the Ohio Supreme Court concluded that only land use changes granted by the City Council when acting in a Legislative capacity were subject to the referendum process. * * * *[6] Thomas Goebel, A Government by the People: Direct Democracy in America, 1890-1940, at 55 (2002) (quoting James W. Sullivan, Direct Legislation by the Citizenship Through the Initiative and Referendum 5, 100 (1892)).[7] Throughout this Article, I will use “initiative” as the term for citizen-initiated referendums to avoid confusion with government-initiated referendums. Many states have different terms for these type of proposals that create direct law by citizen vote. Among terms used are ballot initiatives, plebiscites, propositions, amendments, etc. Also, I will use “referendums,” not referenda, “on the advice of the editors of the Oxford English Dictionary: ‘Referendum is logically preferable as a plural form meaning ballots on one issue (as a Latin gerund referendum has no plural). The Latin plural gerundive referenda, meaning ‘things to be referred,’ necessarily connotes a plurality of issues.”' David Butler & Austin Ranney, Practice, in Referendums Around the World: The Growing Use of Direct Democracy 1 n.1 (David Butler & Austin Ranney eds., 1994). Despite debate, other authors have followed Butler and Ranney's lead and used “referendums” instead of “referenda” as the plural. See, e.g., Michael Gallagher & Pier Vincenzo Uleri, Preface to The Referendum Experience in Europe, at viii (Michael Gallagher & Pier Vincenzo Uleri eds., 1996).[8] Initiative & Referendum Inst., A Brief History of the Initiative and Referendum Process in the United States 2, http://www.iandrinstitute.org (use “I&R Quick Facts” drop-down menu, select “History of the initiative process”). (last visited June 15, 2007) [hereinafter IRI Brief History].[9] In the late 1890s, the Progressives introduced the initiative process in the United States as part of their reform platform. See Thomas E. Cronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall 50-51 (1989). Massachusetts was the last state to adopt the process during this initial era. Howard R. Ernst, The Historical Role of Narrow-Material Interests in Initiative Politics, in Dangerous Democracy?: The Battle Over Ballot Initiatives in America 11 tbl.1.3 (Larry J. Sabato et al. eds., 2001) (discussing creation of initiative process throughout the United States and showing Massachusetts' creation of ballot initiative in 1918).[10] “At present forty-nine of the fifty states require that amendments to state constitutions be submitted to a statewide vote.” New Progressive Party v. Colon, 779 F. Supp. 646, 659 (D.P.R. 1991); see also David B. Magleby, Direct Legislation: Voting on Ballot Propositions in the United States 36 (1984) (noting that Delaware is the one state that does not require statewide voting for state constitution changes).[11] For example, in the 2006 election, New York real estate investor Howie Rich gave millions to eminent domain initiative drives in up to nineteen locations in a dozen states. Patrick Hoge, Campaign 2006: Proposition 90; Scope of Property Rights Issue Debated, S.F. Chron., Sept. 13, 2006, at B1. But see Phyllis Myers, Direct Democracy and Development, Urb. Land, June 2006, at 130 (noting that some of the initiatives were generated by “grass-roots group[s] ... [seeing eminent domain] as an assault on the city's suburban character” and that the building industry and Sierra Club joined to oppose some of the restrictions on the use of eminent domain); Ballot Initiative Strategy Center, Initiative Myths and Facts 2006, Feb. 1, 2007, http:// www.ballot.org/index.asp? Type=B_PR&SEC=[AE1E33E7-19A6-4DE9-8520-3A0AD7FB5EF1]& DE=[AEA2B59D-5013-4C99-B055-009F- FE58CE2E] [hereinafter BISC] (“[T]he straight anti-Kelo measures passed by wide margins.... [while the] regulatory takings measures ... funded by radical conservative real estate investor Howard Rich .... all were defeated except for Arizona's measure.”).[12] 545 U.S. 469, 472, 489-90 (2005).[13] Eleven eminent domain measures were on the ballots in 2006. Nine states approved the measures: Arizona, Florida, Georgia, Michigan, Nevada, New Hampshire, North Dakota, Oregon, and South Carolina. Similar measures did not pass in California, Idaho, and Washington perhaps because they “included a regulatory takings component that would have required governments to compensate owners when their property values were reduced by land use regulations.” Initiative & Referendum Inst., Election Results 2006, at 1 (2006), available at http:// www.iandrinstitute.org/BW%202006-5%20(Election%20results).pdf.[14] See, e.g., Elizabeth Garrett, Money, Agenda Setting, and Direct Democracy, 77 Tex. L. Rev. 1845, 1849 (1999); Clayton P. Gillette, Essay, Is Direct Democracy Anti-Democratic?, 34 Willamette L. Rev. 609, 622-24 (1998); Daniel H. Lowenstein, Campaign Spending and Ballot Propositions: Recent Experience, Public Choice Theory and the First Amendment, 29 UCLA L. Rev. 505, 517-19 (1982); Randy M. Mastro et al., Taking the Initiative: Corporate Control of the Referendum Process Through Media Spending and What to Do About It, 32 Fed. Comm. L.J. 315 (1980); John S. Shockley, Direct Democracy, Campaign Finance, and the Courts: Can Corruption, Undue Influence, and Declining Voter Confidence Be Found?, 39 U. Miami L. Rev. 377 (1985); Daniel Smith, Campaign Financing of Ballot Initiatives in the American States, in Dangerous Democracy, supra note 4, at 71, 71; Betty H. Zisk, Money, Media and the Grass Roots: State Ballot Issues and the Electoral Process 108-09 (1987).[15] 486 U.S. 414, 415-16 (1988).[16] Elisabeth R. Gerber, The Populist Paradox: Interest Group Influence and the Promise of Direct Legislation 94 tbl.5.8 (1999).[17] Rick Klein, Democrats to Woo Voters on Wage Issue: Frozen Minimum Pay Seen as Spur, Boston Globe, Dec. 25, 2005, at A1. Note also that some accused Democrats with proposing Colorado Amendment 36, which failed in the 2004 election because by changing the process for selecting presidential electors, it might have swung the vote toward Democratic presidential candidate John Kerry. See Susan Greene, Company Officials Bankroll Both Sides of Electoral-Vote Issue, Denver Post, Sept. 29, 2004, at A1. But cf. BISC, supra note 12 (noting that the anti-gay strategy seemed to lose some of its power in the 2006 elections when Arizonans voted the “first-ever defeat of a [gay] marriage discrimination measure” reflecting “the real change in public opinion on the issue”).[18] See Jennifer Brown & Karen E. Crummy, Political Gift Ban's Impacts “Absurd”, Denver Post, Dec. 29, 2006, at B1.[19] See Richard L. Hasen, Comments on Baker, Clark, and Direct Democracy, 13 J. Contemp. Legal Issues 563, 564 (2004) (citing Sherman J. Clark, A Populist Critique of Direct Democracy, 112 Harv. L. Rev. 434, 482 (1998)).[20] [Initiative & Referendum Inst., Election Results 2006, http:// iandrinstitute.org/ballotwatch.htm (last visited Jan. 27, 2007)][21] 241 F.3d 614 (8th Cir. 2001).[22] 438 F.3d 949 (9th Cir. 2006) (upholding Oregon's Initiative Integrity Act).[23] Prete, 438 F.3d at 967; Jaeger, 241 F.3d at 617.[24] 449 U.S. 166 (1980).[25] Id. at 179. Justice Brennan dissented. He concluded that Congressional classifications must be rationally related to some actual governmental purpose. See id. at 183. Because Congress did not understand the consequences of what it had accomplished, Justice Brennan contended, it did not have the actual purpose that was achieved in mind. See id. at 193. He outlined the reasons for the misapprehension as follows:Of course, a misstatement or several misstatements by witnesses before Congress would not ordinarily lead us to conclude that Congress misapprehended what it was doing. In this instance, however, where complex legislation was drafted by outside parties and Congress relied on them to explain it, where the misstatements are frequent and unrebutted, and where no Member of Congress can be found to have stated the effect of the classification correctly, we are entitled to suspect that Congress may have been misled.[26] http://www.law.cornell.edu/wex/jus_cogens[27]http://www.law.cornell.edu/supremecourt/text/343/579[28] http://books.google.com/books/about/A_Matter_of_Interpretation_Federal_Court.html?id=ZdcWjMktgz0C[29] http://www.law.cornell.edu/supremecourt/text/488/361[30] http://www.law.cornell.edu/supct/html/99-1257.ZS.html[31] http://www.iandrinstitute.org/[32] http://www.iandrinstitute.org/IRI%20Initiative%20Use%20%282013-1%29.pdf[33] http://www-bcf.usc.edu/~matsusak/Papers/Lupia_Matsusaka_Annual_Review.pdf[34] http://www.osbar.org/public/vote/InitiativeProcess.htm[35] http://thomas.loc.gov/home/histdox/fed_63.html[36] http://www.law.cornell.edu/supremecourt/text/426/668[37] http://www.law.cornell.edu/supct/html/94-1039.ZO.html[38] http://www.law.cornell.edu/supremecourt/text/426/668[39] http://www.law.cornell.edu/wex/declaratory_judgment[40] http://lcbackerblog.blogspot.com/2013/10/elements-of-law-30-notes-and-readings.html[41] http://supreme.justia.com/cases/federal/us/393/385/case.html[42] http://www.law.cornell.edu/supct/html/94-1039.ZO.html[43] http://en.wikipedia.org/wiki/Remand_%28court_procedure%29[44] http://www.law.cornell.edu/supct/html/94-1039.ZO.html[45] http://www.law.cornell.edu/wex/certiorari[46] http://www.law.cornell.edu/uscode/text/28/1257[47] http://www.law.cornell.edu/wex/rational_basis_test[48] http://www.backerinlaw.com/Site/test/wp-content/uploads/2012/06/21AmJCrimL371993Raping-Sodomy.pdf[49] http://www.law.cornell.edu/supct/html/02-102.ZS.html[50] From State of Washington Voters’ Guide 2014 Geeral Election, available https://weiapplets.sos.wa.gov/MyVote/OnlineVotersGuide/Measures?language=en&electionId=54&countyCode=xx&ismyVote=False&electionTitle=2014%20General%20Election%20#ososTop.[51] The [Washington] Secretary of State is not responsible for the content of statements or arguments (WAC 434-381-180).[52] From https://weiapplets.sos.wa.gov/MyVote/OnlineVotersGuide/Measures?language=en&electionId=54&countyCode=xx&ismyVote=False&electionTitle=2014%20General%20Election%20#ososTop
[53] The Secretary of State is not responsible for the content of statements or arguments (WAC 434-381-180).
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