The debate over Proposition 209 has moved from the court of public opinion to the court of law, where it is likely to remain for months or even years.
But while supporters of the new anti-affirmative action law say the public has made a firm ruling at the ballot box, opponents say the court is where the ruling belongs.
“As Jewish Americans who represent a minority, we have to be very vigilant in making sure that courts are not criticized for doing what they’re supposed to do, which is resolve constitutional disputes,” said attorney Bob Kane, president of the regional American Jewish Congress, which fought to defeat the initiative.
Last week, Chief U.S. District Judge Thelton Henderson blocked the enforcement of the proposition through a temporary restraining order, acting on a lawsuit filed the day after the election by a coalition of civil rights, minority and women’s groups.
Both sides will be back in court Dec. 16 for a hearing on opponents’ request for a preliminary injunction, which would block Prop. 209 until its fate is decided. Many legal experts predict a fight all the way to the U.S. Supreme Court.
Jews on both sides of this hot-button issue are likely to follow the legislation’s path closely.
One Jewish community leader, Tad Taube, would not reveal his personal position on Prop. 209. But Taube, president of the Koret Foundation in San Francisco, worries that the Jewish community is devoting to this issue what he calls a “huge amount of energy” that might be better spent elsewhere.
At times, Taube said, he has found himself wondering “how it was decided this was a Jewish issue in the first place.”
In recent months, synagogues and Jewish organizations held forums on the issue, rabbis spoke of it from their pulpits and various organizations issued public statements elucidating their positions.
Informal surveys showed that more Jewish voters statewide opposed the initiative than supported it. But many agree that the Jewish community has been far from monolithic on the measure.
“I’d like to see the level of rancor, divisiveness and disharmony that it has created amongst the Jewish community come to a halt,” Taube said. “It is so counterproductive to our objective as a people to survive and keep our culture and civilization and ethnicity intact.”
Those in the Jewish community who oppose the initiative have insisted that American society is not free of racism and that it is Jews’ duty to assist oppressed minorities.
“This is a matter of our deepest religious and philosophical traditions,” said Mark Schickman, president of the San Francisco Bar Association, in a debate on the issue this fall.
Jewish supporters of Prop. 209, including the bill’s co-chair, state Sen. Quentin Kopp (Ind.-S.F.), have insisted that the bill will not abolish affirmative action, but will eradicate unfair preferences governing state hiring, contracting and education.