Protect Constitutional Rights in California

The California Supreme Court is hearing oral arguments tomorrow (Friday, March 5, 2009) regarding Proposition 8. Proposition 8 was passed by a very slim margin in the last election, and it had the effect of making gay marriage illegal again. A conservative backlash to the recent May 2008 California Supreme Court ruling, which held that denying same-sex marriage is a violation of equal protection, Proposition 8 took away the freedom which gay couples in California had waited for so long to have.

The California Supreme Court must rule Proposition 8 unconstitutional; if it doesn't, the entire nature of civil rights and their protections in the state of California will be severely weakened.

In this country, and in all of its states, we have fundamental rights. Fundamental rights, an essential part of our free society, are those that have been declared our most crucial and undeniable, such as freedom of speech and freedom of religion. Courts have ruled that these rights can only be infringed upon or eliminated if there is a "compelling state interest" to do so.

Another critical component of this country and its states is the independent judiciary. The judicial branch of government interprets the law and ensures that statutes passed by Congress (or state legislatures) do not violate the Constitution (or state constitutions). When a State Supreme Court or the United States Supreme Court (depending on the case and the jurisdiction) rule on something as a matter of law, their decision is final. The only way to change their ruling is to wait until there is a new Justice (or Justices) on the court and hope for a different finding than before, or pass a state or federal amendment.

In relation to same-sex marriage in California and Proposition 8, it is only a California state matter, meaning that the California Supreme Court's decision as a matter of law is final: as of May 2008, same-sex marriage is a fundamental right within the state of California.

Unlike the federal government and many of the states, California strongly believes in the initiative process, in which citizens can use petitions and then a majority vote on election day to pass or alter laws without ever having to go through the legislature. This goes for some constitutional amendments as well.

Changes to the California constitution are divided into two types: minor changes and revisions. Minor changes can be effected by a simple majority of voters using the initiative process (meaning no legislative involvement is necessary); however, constitutional revisions require a 2/3 vote in the state legislature as well as a majority of statewide voters.

In the entire history of the United States, there has never been a case of a fundamental right being granted and then later taken away. This would be equivalent to women losing the right to vote, or religious believers losing their right to freely exercise the religion of their choice, or African-Americans losing the right to their freedom and becoming slaves again. That is the extent of what we're talking about here: taking away the most basic freedoms which we count on to make our society a free and democratic one.

Given that this would be the first time ever that a fundamental right has been stripped away, thereby altering the entire nature of fundamental rights as well as constitutional protections and constitutional law themselves, Proposition 8 must be considered a constitutional revision, necessitating a 2/3 vote by the California legislature. Fundamental rights and their constitutional protections go to the very heart of our democracy, and striking down what has been the nature of fundamental rights for centuries in this state (and this nation) is most definitely not a minor change.

Since the legislature never voted on Proposition 8 and revoked the right to same-sex marriage, it should be overturned, making same-sex marriage legal in California once again.

The arguments which the California Supreme Court will hear tomorrow are ostensibly about same-sex marriage, but ultimately, there's a greater issue at stake: can a simply majority of voters strip away the most basic of our freedoms? Do the rights enshrined in our constitutions mean anything, or are we just a slightly more sophisticated version of a giant mob, collectively voting to disallow whatever it happens to disagree with?

If the court fails to overturn Proposition 8, then all Californians can say goodbye to their inalienable rights.

This article deals with the constitutional issues that Proposition 8 brings up. For my reasons on why gay marriage should be legal in California, please see my article Keep Gay Marriage Legal.