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July 13, 2013
Dan Morain: Prop. 8 defense failed before

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(July 13) In one of most divisive civil rights issues of the day, California Gov. Brown resisted the electorate by refusing to defend an initiative that had stripped minorities of basic rights.

By a 5-4 margin, the U.S. Supreme Court sided with the governor and struck down the measure. Dissenting justices warned that the majority had undermined voters. This paper quoted a backer saying she was "dumbfounded" that the court "would say that 4.5 million people in California were wrong."

The governor was Pat Brown, not Jerry, and the case involved a discriminatory housing initiative, Proposition 14 of 1964, not marriage equality, the focus of the high court's Proposition 8 ruling two weeks ago opening the way for same-sex marriages in California.

Reprising a play from 50 years earlier, Jerry Brown and Attorney General Kamala Harris refused to defend Proposition 8. That forced its backers to hire their own attorneys. By a 5-4 vote, the court held that Proposition 8's supporters weren't directly affected when gays and lesbians marry, and had no standing to sue.

To hear initiative entrepreneurs tell it, the decision threatens the core of direct democracy. Politicians will be able to block initiatives simply by not defending them, they warn. For evidence, they cite Justice Anthony Kennedy's dissent.

"Giving the governor and attorney general this de facto veto will erode the cornerstones of the state's governmental structure," Kennedy wrote. "And in light of the frequency with which initiatives' opponents resort to litigation, the impact of that veto could be substantial."

In the 100-year history of California initiatives, however, these are the two instances in which governors refused to defend initiatives before the U.S. Supreme Court. The governors were absolutely right to refuse to act.

Proposition 14 involved a volatile mix of economic interests, property, discrimination and integration. It helped end Pat Brown's career and lead to Ronald Reagan's rise.

In his 1963 inaugural address, Brown called for legislation to end bigoted practices in which real estate agents and apartment owners could refuse to sell or rent to minorities.

Assemblyman W. Byron Rumford, a Berkeley Democrat, carried the Fair Housing Act in 1963. The battle lines are familiar to anyone who pays attention to state politics now.

The California Labor Federation, and civil rights and church groups embraced the Rumford act. Lobbyists representing real estate agents and apartment owners worked to kill it. Their tactics included drafting a property owners' bill of rights equating discrimination with freedom.

The California Real Estate Association's declaration advocated the "right of all Americans to choose congenial tenants," and "to enjoy the freedom to embrace, reject, deal or not deal with others."

The Assembly approved Rumford's bill easily. The Senate struggled, passing it at the end of the session, with 22 Democrats voting for it, 12 Republicans joined by one Democrat against it, and five senators ducking the vote.

The California Real Estate Association and California Apartment Owners Association answered with an initiative. Proposition 14 of 1964 could have been read as being perfectly reasonable, not unlike the 2008 initiative that defined a marriage as being between a man and a woman:

"Neither the state nor any subdivision or agency thereof shall deny, limit or abridge, directly or indirectly, the right of any person, who is willing or desires to sell, lease or rent any part or all of his real property, to decline to sell, lease or rent such property to such person or persons as he, in his absolute discretion, chooses."

Its backers used an argument against the Rumford act that echoes today, writing in the ballot pamphlet: "What is to prevent the Legislature from passing laws prohibiting property owners from declining to rent or sell for reasons of sex, age, marital status or lack of financial responsibility?"

Attorney General Stanley Mosk, later appointed by Pat Brown to the California Supreme Court, signed the argument against Proposition 14, saying, "It would legalize and incite bigotry."

In his book "California Rising: The Life and Times of Pat Brown," Ethan Rarick writes that Brown traveled the state railing against Proposition 14. The governor sent a letter to Los Angeles Times publisher Otis Chandler rebuking him for the Times' endorsement of the initiative, saying it "puts property rights over human rights."

Proposition 14 won easily, 4.5 million votes to 2.4 million. On the night of the landslide, John Mockler, then a 22-year-old who worked on the campaign against Proposition 14 and now a Capitol consultant, was drowning his sorrows with a young woman at a downtown Los Angeles hotel bar when Brown walked in.

The governor, lost in his thoughts, started pacing and muttering that California was not racist. The woman interrupted Brown to say he was making her cry. Brown then teared up, and all three cried over the election results, Mockler recollected.

When civil libertarians sued to invalidate Proposition 14, Brown refused to defend it, as did Thomas Lynch, whom Brown had named to fill Mosk's term as attorney general. Lynch urged the high court to strike down Proposition 14, not unlike Harris who filed a brief urging the justices to invalidate Proposition 8.

Standing wasn't an issue in 1967. Real estate interests were directly affected by fair housing laws. Indeed, standing rarely has been an issue in initiatives. Some interest group almost always can prove that the outcome will impact their interests.

The U.S. Supreme Court struck down Proposition 14 in May 1967. By then, Reagan was in office and Pat Brown's political career was over. On the day the court issued its decision, Brown told reporters he felt "vindicated."

"It was unconstitutional," he said that day. "It was one of the worst things that ever happened in our country."

Jerry Brown and Harris risked far less by not defending Proposition 8. Californians' attitudes toward marriage equality shifted far faster than views about integration, in part because of gay rights opinions by Kennedy, the Reagan appointee who authored the opinion last month striking down part of the federal Defense of Marriage Act.

Although they risked little, Brown and Harris were every bit as correct as Pat Brown, Mosk and Lynch. They all took oaths to uphold the constitution, not majority rule when the majority is wrong.

In the 1967 case, Reitman v. Mulkey, Justice William O. Douglas wrote a concurrence in which he quoted James Madison: "And to those who say that Proposition 14 represents the will of the people of California, one can only reply: 'Wherever the real power in a government lies, there is the danger of oppression.' "

In other words, people who are in the minority have cause to become nervous whenever the majority is unrestricted. Voters over the years have shown they can be flat wrong, especially when the topic turns to minority rights.

Follow Dan Morain on Twitter @DanielMorain.

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