Wednesday, November 12, 2008

Sweetbitter Proposition

"[U]nder this state's Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual's liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process." [emphasis added]

in re Marriage Cases, California Supreme Court, S147999, May 15, 2008

There is something sweetbitter about the 52% to 48% passage of California Proposition 8 on November 4, 2008 making same-sex marriage illegal.

If, in the opinion of the Court, the same-sex marriage right derives from the equal protection and other clauses of the state Constitution, then Proposition 8 is not only a shame but a sham. It would take instead the extra-popular route (an amendment passed by two-thirds vote of both branches of the legislature before being ratified by the voters) to nullify this right.

If—When—the Court now strikes down Prop 8's implementation, which would follow from its previous opinion, it would teach an important lesson: It takes extraordinary means to change an underlying constitutional right. (Think of the thankfully difficult "2/3 of the Congress, 3/4 of the states" process of amending the U.S. Constitution).

That seems much more significant to me than simply achieving a majority approval of same-sex marriage. In fact, if that were one's primary goal, what do you need constitutions for? Might as well be British.