Last November, history was made when Barack Obama was elected as the forty-fourth president of the United States. While the country took a giant leap forward that night, the state of California took an equally sizable step back with the passing of Proposition 8.
While national coverage of Prop 8 was eclipsed somewhat in the days immediately after the election, it has remained a source of thick controversy in California. Prop 8, which limits the state Constitution's definition of marriage to unions consisting of "a man and a woman," was put on the ballot to overturn a previous ruling made in May by the California Supreme Court, a ruling that itself overturned a previous ban by voters on same-sex marriage.
History lessons
It all began with Proposition 22, a ballot initiative passed in March 2007 that prohibited California from allowing same-sex marriages. In May 2008, the California State Supreme Court ruled that Prop 22 violated the state Constitution and was invalid.
This led to Proposition 8, a measure that was put on the November ballot to reverse the court’s decision. By a small margin (fifty-two per cent in favor, forty-seven per cent against), Prop 8 was passed on Election Night. The news got swallowed up amidst the celebration of Obama's victory, but the story's not over: now the validity of Prop 8's passing is in question.
Last week, many of the same state supreme court justices that ruled on the validity of Prop 22 heard arguments regarding same-sex marriage and the validity of Prop 8. Within the next ninety days, the court will come back with a decision that may alter the future of not just same-sex marriage, but minority rights for everyone.
The case against
During last week's hearings, opponents of Prop 8 presented a number of different arguments for repealing it. One line of debate called into question whether Prop 8 was properly an amendment (as it had been presented to voters) or a revision to the California Constitution. In this context, an amendment is regarded as less serious, a way to tweak the wording of a text; a simple majority vote can allow for an amendment to any aspect of the state Constitution. A revision, on the other hand, is considered a complete overhaul of a portion of the state Constitution, one that revises the fundamental underpinnings of the document. This requires a two-thirds majority vote from the legislature before it can be made.
Since Proposition 8 affected the state Constitution's wording (the phrase "a man and a woman" was key), supporters of Prop 8 claim it was only an amendment. But in actuality, basic rights were stripped from a group of Californians. A majority of state officials, including the governor, agree this is more properly regarded as a revision and a violation of the state Constitution.
So why does the California Supreme Court get to decide? Because when this nation was founded and the original Constitution was written, provisions were made for a judiciary branch. One of the main reasons that branch exists is to ensure that if ever a majority of citizens tried to strip away the rights of a minority, there would be a system in place to interpret the basic freedoms as listed in the country's foundational documents.
State Constitutions and state governments were based on the same formula, writ smaller. Courts are in place so that America does not become a place where might -- in this case, the might of superior numbers -- always and automatically makes right.
A second argument in favor of repealing Prop 8 asked whether the measure violates the separation-of-powers principle. It's hard not to reach the conclusion that it does, since Prop 8 in effect made a legislative question out of an issue that had already been decided judicially -- namely, the protection of a minority group's Constitutional rights.
What's so ironic about Prop 8, at least in terms of its constitutional validity, is that the California Court has already ruled in favor of gay marriage. A majority of officials in the state government, including Governor Arnold Schwarzenegger (a Republican who endorsed the GOP's candidate for president in both 2004 and 2008), have stated clearly and repeatedly that Prop 8 should be repealed. Yet somehow the possibility remains that the measure could stand.
What it means
Should Prop 8 remain enshrined in law, there's more at stake than the rights of gays to marry. The media storm surrounding Prop 8 has generated all-time high levels of support for gay marriage; a recent field poll stated that of the 761 voters questioned, forty-eight per cent felt that Prop 8 should be repealed, while forty-seven per cent felt it should remain in place. In other words, there was a five per cent drop among Prop 8 supporters between last November and now. It doesn't seem far-fetched to suppose that intolerant attitudes will continue to wane, rather than grow, and that one day gays will have secure marriage rights in the Golden State.
No, at the root of matter, Prop 8 really concerns all minority groups, current and future. If a Supreme Court ruling can simply be overturned by a ballot measure, how can anyone feel safe that one day his or her rights won’t be voted away?
In fact, a recent study conducted by the Institute for the Study of Secularism in Society and Culture showed that the number of Americans who consider themselves Christian has lately dropped from eighty-six to seventy-six per cent. If this trend continues, it's possible that Christians could eventually find themselves a minority, and at risk of becoming victims of their own precedents (the majority of Prop 8 supporters having come from the religious right).
Prop 8 raises questions about the California Constitution, and the nature of constitutions in general, as much or more than it raises questions about gay rights. The judiciary is, fundamentally, a branch of government designed so that people in power could never gain enough power to nullify the rights of others. Above all, the Prop 8 case is about the basic, inalienable rights this country was founded on preserving. Life, liberty and the pursuit of happiness. For all.
