I think it is impossible to give an objective answer to the question posed, because the answer will depend on what one regards as a disadvantaged minority. To give a couple of examples, voters in some states have approveed measures allowing marijuana to be used by ill people, and voters regularly approve measures giving tax breaks to veterans. Are these measures that benefit disadvantaged minorities?
But the broader answer was given by Richard Briffault in an article many years ago: "[T]he challenge to the initiative for lack of sensitivity to minority interests is misguided; the initiative, like other devices of direct democracy, was designed as a *majoritarian* tool, to be used when the legislature failed to act on a program the majority desires."
Various viewpoints and sources on how minorities fare under the initiative process can be found at pp. 371-74 of the 3rd edition of Rick Hasen's and my casebook, "Election Law."
The question does not seem very relevant to Oregon's Measure 36, which was, in line with Briffault's thought, a majoritarian measure intended to protect a majoritarian institution. Therefore, the question of whether measures intended to protect a minorty can pass seems irrelevant to whether Measure 36 could have been defeated. However, I doubt whether Mr. Pinello's interlocutor is correct that it could have been defeated by a campaign challenging voters to prove they are not biased against homosexuals. The reason is that I do not believe most voters who supported Measure 36 and similar measures are biased against homosexuals or believe that preserving the fundamental nature of marriage has anything to do with bias against anyone. Supporters of same-sex marriage tend to see it as an issue of bias or discrimination, but supporters of marriage as it has always been do not.
ΚΚΚΚΚΚΚΚΚΚΚ Best,
ΚΚΚΚΚΚΚΚΚΚΚ Daniel Lowenstein
ΚΚΚΚΚΚΚΚΚΚΚ UCLA Law School
ΚΚΚΚΚΚΚΚΚΚΚ 405 Hilgard
ΚΚΚΚΚΚΚΚΚΚΚ Los Angeles, California 90095-1476
ΚΚΚΚΚΚΚΚΚΚΚ 310-825-5148
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu [mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Volokh, Eugene
Sent: Wednesday, January 12, 2005 9:45 AM
To: election-law
Subject: FW: Popular Referenda and the Expansion of Minority Rights
I thought I'd pass along this query from another list, in case someone on this one may know the answer.
Eugene
-----Original Message-----
From: conlawprof-bounces@lists.ucla.edu
[mailto:conlawprof-bounces@lists.ucla.edu] On Behalf Of
dpinello@jjay.cuny.edu
Sent: Wednesday, January 12, 2005 8:03 AM
To: ConLaw Prof
Subject: Popular Referenda and the Expansion of Minority Rights
I'm researching a book (titled America's Struggle over
Same-Sex Marriage) and currently am in Oregon conducting
interviews with participants in the Measure 36 campaign, one
of the 13 ballot referenda last year placing
one-man-one-woman limitations on the definition of marriage
in state constitutions.
Yesterday, I met with someone affiliated with the Oregon
Family Council who criticized the decision last March by the
Multnomah County (Portland) Commissioners extending marriage
licenses to same-sex couples. The process, and not the
substance, of their actions was the target of his lament,
stating that the commissioners had not acted openly in making
the policy choice and had not invited public participation.
He then said, "The people are smart enough, fair enough, and
wise enough to make important social policy decisions."
Later in the interview, he expanded on the thought: "A well
run initiative campaign by the gay community listing, say,
the top 20 rights of marriage (intestate succession; visiting
each other in the hospital; making medical-care decisions;
etc.) might have worked. They should have taken it to the
people and said, 'Prove to us that you're not biased against
homosexuals. Prove your basic decency and fairness. Look at
these rights and acknowledge that they're appropriate for us
to have.' I think such a campaign would have done very, very
well in Oregon."
I then asked him if he could provide examples from American
history of statewide referenda that had the effect of
expanding the rights of a disadvantaged minority. He could not.
I have further interviews scheduled with supporters of
Measure 36 and ask your help: Are there instances of
initiatives or referenda in the United States where voters
indeed expanded the rights of minorities (racial, ethnic,
disabled, etc.)? My (superficial) knowledge is that they've
only had the effect of contracting rights.
Dan Pinello
dpinello@jjay.cuny.edu
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