In less than 90 days, the California Supreme Court will in all likelihood issue a ruling that will be unfair, discriminatory and unfortunately, completely legal.
One week ago, the court heard oral arguments in the case to overturn California’s controversial Proposition 8, which constitutionally defined marriage as between members of the opposite sex. Two days later, two same sex couples and the City and County of San Francisco filed three lawsuits challenging the validity of the ballot measure.
The seven justices on California’s highest court are examining three questions regarding the proposition: Is the measure a revision or an amendment to the state’s constitution, does it violate the separation of powers and what should become of the roughly 18,000 same sex marriages performed since last May?
Regarding the first question, were the court to find the measure to be a revision, Prop 8 would be nullified, as it was not approved by two-thirds of the legislature before being put to a popular vote.
Unfortunately California’s constitution was written in such a way as to tie the justices‘ hands in this case. As the document neither defines amendment nor revision explicitly, previous court rulings have found that an amendment must be limited in scope while a revision substantially alters the functioning of state government.
While Prop 8 unequivocally takes away a minority’s basic right, it doesn’t change the functioning of the government and is in that sense legal. But a system that allows a majority to impose its beliefs on a marginalized community by removing a fundamental human right is dangerous and immoral. It should never be this easy to eliminate rights. The constitution at the federal level wisely requires a multi-step amendment process to guard against such an abuse and so should the state of California.
The justices are also deciding if Prop 8 violates the separation of powers by overruling the court’s previous decision on gay marriage. Despite the undoubtedly flawed amendment process, the citizenry has the right to a say in determining what is in the constitution. While it should be far more difficult to overrule the state’s supreme court, the people’s ability to amend the constitution must be maintained.
Additionally, the unions of the roughly 18,000 same sex couples married between May and November must be upheld. Their government made a promise to them that must be kept regardless of future legislation.
This ordeal highlights the necessity of a real revision to the state’s constitution to make the amendment process more difficult. Taking away a civil right should require a stricter legislative process than expanding living space for farm chickens or starting a high-speed rail network.