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CALIFORNIA SUPREME COURT HEARS ARGUMENTS AGAINST PROP 8.
Today, the California Supreme Court is hearing challenges against Proposition 8, the ballot initiative that outlawed same sex marriage in California. Arguing for Prop 8 supporters is everyone's favorite sex cop, Ken Starr:
"Rights are ultimately defined by the people," said Starr, representing Protect Marriage, the group that put the constitutional amendment on the ballot. He said proponents of Prop. 8 want to "restore the traditional definition that has been in place since this state was founded."
I find these sorts of arguments to be less than compelling, if only because while yes, rights are fundamentally defined by the people, there's something incredibly tyrannical about deciding, by virtue of the immutable circumstances of a person's birth, that they're not entitled to the same rights as you are. As Julian Bond put it, Prop 8 put all Americans "at risk of discrimination by a majority show of hands."
Prop 8 challengers seem to be having a tough time:
Justice Joyce Kennard, one of the justices in the majority of the 4-3 ruling last year that legalized gay and lesbian marriages - a decision that voters overturned in approving Prop. 8 in November - said at one point that opponents of the measure would have the court choose between "two rights ... the inalienable right to marry and the right of the people to change the constitution as they see fit. And what I'm picking up from the oral argument in this case is this court should willy-nilly disregard the will of the people."Well, among the things that shouldn't be disregarded "willy-nilly" are people's fundamental rights. Prop 8 trivialized the idea of democracy and "inalienable rights" before its opponents decided to challenge it in court, simply by making them subject to a majority vote. -- A. Serwer
COMMENTS (3)
I don't think you understand California Constitutional law. It's f----. Starr is right. They can do that here. That's why we need a new state constitution.
California is not a republic. It's a direct democracy with no minority rights other than those guaranteed by the US Constitution
Posted by: Jon | March 5, 2009 6:48 PM
hey, get real. the constitution is the highest law of the state. right now, the law regarding marriage is within the jurisdiction of the state. if the constitution bans gay marriage, then gay marriage is banned, no matter how unfair, unjust or repulsive that is to anybody. as the court pointed out, california's constitution has been amended some 500 times, as opposed to fewer than 30 times for the much older federal constitution. so fans of gay marriage might spearhead a big campaign to make the state constitution a lot harder to amend -- but only after they've spearheaded a drive to eliminate the amendment that bans gay marriage. another possible alternative might be to appeal to the federal courts. maybe they --and this would surely go all the way to the supremes -- would rule that the ban on gay marriage in the california constitution runs counter to equal protection or some other part of the u.s. constitution. in that case, the ban would be eliminated under the doctrine of the supremacy of federal law. but i wouldn't hold my breath waiting for that, especially given the current makeup of the court -- and the prospects for soon-to-come changes.
Posted by: samg | March 5, 2009 10:56 PM
"That's why we need a new state constitution."
Yes, you need a constitution like that of, say, Georgia: a constitution where, in order to undo an anti-gay amendment, you will have to win the support of a two-thirds majority of the state legislature, then a majority of the people.
Surely such an arrangement will bring an end to discrimination more quickly than a simple majority vote would.
Let's be less stupid about the supermajority requirement of many constitutions: it has done more to perpetuate evil than it has ever done to prevent it. That enlightened jurists have found ways to avoid them does not change that fact.
Even if the California Supreme Court decides to uphold Proposition 8, it won't survive. In a few years, the electorate will reverse it in the same way they established it. The same will probably be true in other initiative states.
Of course, elsewhere, in those more civilized states where the rabble can't change the constitution on a whim, gays will remain less than equal indefinitely.
But at least no one there will have to worry about that horrifying "direct democracy."
Posted by: Drew | March 6, 2009 1:12 AM