In 1998, the Utah Legislature proposed and the voters passed Proposition 5, an amendment to the state's constitution. It says that initiatives placed on the ballot to affect hunting and fishing must be approved by two-thirds of the people voting.

Proposition 5 was the work of hunters who feared that animal-rights activists wanted to end hunting and fishing in Utah. So, the hunters decided to make it harder for organizations like the Humane Society and the Fund for the Animals to win voter approval of laws placed directly on the ballot through initiative petitions.

Because of Proposition 5, initiatives affecting wildlife management are the only ones that require passage by two-thirds of the voters. All others may pass by a simple majority.

This always has struck us as unfair. It is also ironic, because Proposition 5 itself only had to pass by a simple majority of the popular vote to amend the state constitution. (It passed with 52 percent of the vote.)

The animal rights groups who got skunked by Proposition 5 tried to get it overturned in the courts on the ground that it violates the First Amendment's protection of free speech. It was a long shot, and they lost in federal district court. Last week, the full 10th U.S. Circuit Court of Appeals confirmed that loss.

The appeals court ruled that Proposition 5 did nothing to limit free speech or wide open political debate of wildlife issues, it simply made it harder for the proponents of an initiative to win. The right to speak and the right to make law are not the same thing. The court is correct.

Constitutions, after all, place all kinds of limits on what laws can be passed. Constitutions in other states require supermajorities to pass, for example, appropriations bills, tax levies, bonding bills, debts and voter redistricting.

Nevertheless, from a policy standpoint, Proposition 5 remains a mistake because it stacks the deck against citizen-initiated law. Coupled with the Legislature's other efforts to set ever-higher hurdles for initiative petitions, the people's right to make law directly, which is itself enshrined in the Utah Constitution, is increasingly meaningless.