The Litigation Begins

I was part of an anti-Proposition 8 demonstration this weekend. Not intentionally, though. As my friend and I walked down Market Street in San Francisco (on our way to find me some fashion), we saw a large crowd marching down the street, shouting slogans like “What do we want? (Equal rights!) Went do we want them? (Now!)” and “Gay, straight, black, white, marriage is a civil right!” So we walked along with the crowd, yelling the slogans, not only because it was an interesting way to get to Union Square, but because we agreed with what the crowd was saying. But then, as we approached Powell Street, my friend and I left the crowd and went to Urban Outfitters where I was to find fashion.

At the time, I thought, “This is an interesting diversion.” I was also aware, though, that for many, if not all, of the people in the chanting crowd, these demonstrations are not a diversion. This is their lives they’re fighting for. I can live comfortably in the assurance that I will never need to fight the government for the right to marry someone (if I even choose to marry anyone at all!).

But there are people whose lives have now been relegated to second-class status under the law.

The California Supreme Court has agreed to take up the issue. It will accept arguments for and against the constitutionality of Proposition 8 until January. At issue is whether or not Proposition 8 is merely an “amendment” or a “revision” of the state constitution. If the former, Prop. 8 stands, and same-sex couples can’t marry. If the latter, Prop. 8 is unconstitutional on its face, and same-sex marriage becomes the law of the land once again, since a 2/3 vote of both the state legislature and the voters is required to pass a constitutional “revision.”

Opponents of Prop. 8 argue that taking away the rights of a minority is so contrary to the spirit of the California Constitution and the U.S. Constitution that a simple majority cannot do it. Alexis de Tocqueville, during his sojourn through the United States in the very early years of the Republic, warned that the majority could conceivably strip a minority group of its rights by virtue of nothing more than majority’s size. This tyranny of the majority, he wrote, was a danger inherent in democracy and something that needed to be guarded against.

De Tocqueville would be disappointed to learn that his warning went unheeded.

The California Supeme Court has only twice overturned voter-approved constitutional amendments: in 1948 and again in 1991. In 1978, the Court said that “revision” referred to “substantial alteration of the entire constitution, rather than to a less extensive change in one or more of its provisions.” So, is removing a right of an entire group of people a “substantial alteration of the entire constitution”? That is what the court will be deciding.

Preliminary indications are not good. Last week, the court voted 6-1 merely to hear the challenge to Prop. 8’s constitutionality. The lone dissenter was Justice Joyce L. Kennard, one of four judges who sided with the majority in the May case that legalized same-sex marriage. Her vote will undoubtedly be crucial, but since she doesn’t think that the petitioners even have the ability to file their case before the court, it’s unlikely she would find in favor of the Prop. 8 opponents.

What’s next for Prop. 8? Opponents could place an initiative on the ballot to repeal the amendment. It’s up in the air as to whether or not that would pass. The Mormons, energized by their win this time, could certainly muster up enough money to defeat a repeal amendment.

Shame on Californians who voted for this. They now have the dubious honor of being the first people to amend a constitution so as to take away extant rights.