November 10, 2008
Prop 8 and common sense
Posted by: Andoni
California Governor Arnold Scwarzenegger thinks the battle of Prop 8 is not over. Yesterday on CNN he said preventing gays from marrying was "the same as" preventing interracial marriages in 1948.
In fact, he seemed to urge the California Supreme Court to again lead on the rights of people to marry the person they love by invalidating Prop 8:
"It's unfortunate, obviously, but it's not the end. I think that again maybe we will undo that, if the court is willing to undo that and then move forward from there and again lead in that area.
From the very beginning I could never understand how Prop 8 could be valid if it passed. From a strictly intuitive point of view, how could it be that a simple majority can take away the rights of a minority? In its landmark decision the CA Supreme Court said that the right for gays to marry was found in the state constitution as a basic civil right. How can a fundamental right be stripped away by a mere simple majority of the voters?
Looking at this absurd situation from a different angle, in the year 2000 Californians passed Proposition 22 which defined marriage as between a man and a woman. It passed 61.4% to 38.6%. That proposition was invalidated as unconstitutional by the California Supreme Court (above) earlier this year which then opened the door to same sex marriage.
Jump forward to Prop 8. It was the exact same wording as Prop 22, only this time they labeled it a constitutional amendment. It passed by only 52% to 48% --- much much less support support than Prop 22. But this time they called it a constitutional amendment instead of a ballot initiative. The same wording passed with less support. Does it make sense in any legal scheme that simply changing what it is labeled on the ballot (and getting fewer votes) should allow it to "stick" this time? Not in my law book of common sense.
The lawsuit by the ACLU and Lambda Legal bases it challenge on the fact that Prop 8 was a major change to the constitution rather than a minor tweak, therefore the procedure for getting Prop 8 on the ballot was invalid. That makes sense too. An explanation of the lawsuit as well as links to the legal briefs can be found here. Additionally, my friend David Cruz has a nice blog in the Wall Street Journal explaining the aftermath of Prop 8 here.
I certainly hope the California Supreme Court finds its backbone to invalidate Prop 8 after making its landmark decision that the right for gays to marry is a fundamental right under the state constitution. Surely, such a fundamental right cannot be allowed (either from a constitutional law point of view or a common sense point of view) to be revoked so easily.
UPDATE (after an email from Evan Wolfson) : All judicial decisions have a political component and we need to make sure the political climate is as good as it can be to empower the court to do the right thing. To help the court find its backbone, we need to engage the public, our communities, and our families on how important this fundamental right to marry is for us. The bottom line is that we have a role in this too. We can't smply sit back and expect the court to do all the heavy lifting.
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