We’re all waiting to see how the California Supreme Court rules on the constitutionality of Proposition 8. Equality advocates argue that stripping lesbian and gay people of the right to marry was what California law calls a revision: a constitutional change so fundamental that it should not have been allowed on the ballot without first being approved by a constitutional convention or a legislative supermajority.
In contrast, Proposition 8’s far right supporters claim it was a constitutional amendment: a non-fundamental change that properly went directly to the voters. Supporters of Prop 8 have also loudly condemned equality advocates for going to court after the election, saying that such a move is illegitimate because the people have already spoken.
The Right is wrong on both counts.
First, Prop 8’s sponsors conceded the legitimacy of post-election judicial review last summer. That’s when equality advocates first went to court and argued that Prop 8 was a revision and should, therefore, be taken off the ballot. In response, the Proposition 8 sponsors told the California Supreme Court :
Judicial review of petitioners’ claim that Proposition 8 is a constitutional "revision" should be deferred until after the impending election. …
The availability of postelection relief in this case makes it preferable to leave the challenge for resolution with the benefit of full, unhurried briefing, oral argument, and deliberation that generally will be available after the election instead of resolving the case in the often charged and rushed atmosphere of an expedited preelection review. (emphasis added, internal quotations removed)
As we all know, the California Supreme Court refused to strike the initiative from the ballot. So now that it’s "after the impending election," Prop 8’s sponsors are in no position to accuse progressives of bad faith as far as timing is concerned.
They are also wrong on the substance.
Last year, the California Supreme Court determined that sexual orientation is a suspect classification under the state’s Equal Protection clause: Any law treating people differently due to sexual orientation must be subjected to the strictest level of scrutiny in order to be constitutional.
With Prop 8, a suspect classification (sexual orientation) can now be used to deny certain people a fundamental right (the right to marry). In other words, the California Constitution was changed to eliminate the requirement that all receive equal protection under the law, surely the most fundamental of changes in the state’s governing compact.
The purpose of the Equal Protection clause is to limit the ability of popular majorities to take away the basic rights of the less powerful or popular. Before the election, the right of gays and lesbians to marry was a fundamental right protected by the state’s Equal Protection guarantee.
So Proposition 8 did far more than "simply" redefine marriage. Through Proposition 8, a simple majority vote took away fundamental rights from a minority. If the underlying purpose of the Equal Protection clause can so easily be ignored, then the constitutional guarantee of Equal Protection has been de facto eliminated.
That cannot be considered anything except the most fundamental of constitutional changes – a revision under California law, not an amendment.
The implications of the Right’s arguments are terrifying.
If the fundamental right to marry can be taken away from gay people by simple majority vote, what right can’t be taken away from gay people that way? Can voters prohibit gays from getting driver’s licenses? From opening restaurants? From owning property?
And why limit this to lesbians and gays? Under California law, voters would be able to “redefine” marriage to be the union of people of the same race. Or they could prohibit women from driving. And they could do it with nothing more than a simple majority vote. Surely the California Constitution prohibits these outrages.
The California Supreme Court should not open this Pandora’s Box. Proposition 8 must be struck down.