[lbo-talk] Constitutionality of popular referenda

[Wojtek S]

Popular referenda have been used in the US and elsewhere to deny rights to
unpopular minorities (cf. sexual or religious minorities).  The District of
Columbia Council just approved a measure legalizing same sex measure, and
the opposition unsuccessfully tried to use a referendum to derail that
measure.  The referendum initiative was denied on the grounds that
discrimination is illegal.

I wonder what is the validity of this strategy i.e. voiding results of
referenda on the grounds that they deny rights to some citizens of the US,
which seems to be prohibited by the 14th Amendment:

"1. All persons born or naturalized in the United States, and subject to the
jurisdiction <http://www.usconstitution.net/glossary.html#JURIS> thereof,
are citizens of the United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State
deprive<http://www.usconstitution.net/glossary.html#DEPRIVE>any person
of life, liberty, or property, without due
process <http://www.usconstitution.net/consttop_duep.html> of law; nor deny
to any person within its
jurisdiction<http://www.usconstitution.net/glossary.html#JURIS>the
equal protection of the laws."

I do not think that the SC is likely to take the issue in regards to same
sex marriages, but its hand can be forced by, say, organizing a superidiotic
referendum e.g. one prohibiting miscegenation - which would probably pass if
put to a popular vote and would almost certainly be challenged in SC, which
in turn would create precedent voiding results of previous referenda on same
sex marriages.

Any opinions?

Wojtek