Resolution of 209 Dispute: It’s One for Supreme Court

Chief U.S. District Judge Thelton E. Henderson has blocked implementation of Proposition 209, the state anti-affirmative action initiative, until a legal challenge to its constitutionality is resolved. This is certainly a matter for the courts to decide, and the sooner this case reaches the U.S. Supreme Court the better.

Proposition 209, which this newspaper opposed, redundantly bans discrimination against women and minorities in public employment, contracting and education. It also bans affirmative action in government hiring, contracting and university admissions. The measure was supported by 54% of California voters in the November election, and the legal challenges, by the American Civil Liberties Union and others, were filed almost immediately.

Henderson granted a preliminary injunction that prevents the state, the University of California and local governments from implementing the ballot measure pending a trial or final ruling on its legality. His action is perceived by some as frustrating the will of the majority. Gov. Pete Wilson declared himself “deeply disappointed” by Henderson’s decision, and state lawyers plan to appeal the injunction.

In a democracy, the majority rules. However, the framers of the U.S. Constitution, ever mindful of the need to protect the rights of minorities, insisted on safeguards. States have the right to pass voter initiatives, but the Constitution is supreme. And an independent judiciary, which determines whether a state law passes this ultimate test, is a key protector of democracy.

The White House has joined this important fight. When he was running for reelection President Clinton opposed 209 but did not have much to say about this divisive and controversial issue until late in the campaign. He indicated last week, however, that he believes Proposition 209 violates the equal protection clause of the Constitution.

As this case progresses, the U.S. Justice Department will bring its resources and legal clout to bear on the side of those who oppose the initiative; it will argue that 209 is unconstitutional because it denies equal access to government. How so? As a presidential spokesman put it, “The arguments have related to the nature of discrimination: denying an identified group, in this case women and minorities, access to a process that would be available to other identified groups,” such as veterans or athletes. In simpler terms, the question the court must grapple with is whether it is constitutional to retain preferences for some groups but not for others. Supporters of 209 will ask: How can a law that bans discrimination violate the equal protection clause?

Henderson, described by fellow jurists as a prudent and careful judge, has done his job. The personal attacks that have come from opponents are inappropriate. At issue is whether a popular initiative conforms to the nation’s highest laws. Now, the appeals will begin and the court battles will continue. Sometimes, democracy is downright messy.