The American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights filed a writ petition before the California Supreme Court today urging the court to invalidate Proposition 8 if it passes. The petition charges that Proposition 8 is invalid because the initiative process was improperly used in an attempt to undo the constitution's core commitment to equality for everyone by eliminating a fundamental right from just one group - lesbian and gay Californians. Proposition 8 also improperly attempts to prevent the courts from exercising their essential constitutional role of protecting the equal protection rights of minorities. According to the California Constitution, such radical changes to the organizing principles of state government cannot be made by simple majority vote through the initiative process, but instead must, at a minimum, go through the state legislature first.It is totally unacceptable that the fleeting whims of transitory majorities can trample upon minority rights in such a fashion as was done with the Proposition to ban gay marriage in California. Minority rights and other principles protected within a constitution are there for a reason, to endure and to protect them against the tyranny of the majority.
The California Constitution itself sets out two ways to alter the document that sets the most basic rules about how state government works. Through the initiative process, voters can make relatively small changes to the constitution. But any measure that would change the underlying principles of the constitution must first be approved by the legislature before being submitted to the voters. That didn't happen with Proposition 8, and that's why it's invalid.
"If the voters approved an initiative that took the right to free speech away from women, but not from men, everyone would agree that such a measure conflicts with the basic ideals of equality enshrined in our constitution. Proposition 8 suffers from the same flaw - it removes a protected constitutional right - here, the right to marry - not from all Californians, but just from one group of us," said Jenny Pizer, Senior Counsel with Lambda Legal. "That's too big a change in the principles of our constitution to be made just by a bare majority of voters."
This conflict, between a democratic process, such as a ballot initiative, and the protection of minority rights is similar to the conflict analyzed in this Supreme Court of Canada opinion, where the upshot was basically to say you can't have one trump the other. What we witnessed in California, and in other states, was the trumping of minority rights by a political majority. That shouldn't be allowed to happen. As the Times says today:
It seems odd that the proposition wasn't stopped in its tracks when an injunction was sought against it in the first place. Could have been a political decision or a ripeness question, as suggested in the press release. Whatever the reason, this outcome is a black mark for Californians and the suit is worth watching for anyone who cares about the protection of minority rights.
Far from showing that California’s Supreme Court was wrong to extend the right of marriage to gay people, the passage of Proposition 8 is a reminder of the crucial role that the courts play in protecting vulnerable groups from unfair treatment.Apart from creating legal uncertainty about the thousands of same-sex marriages that have been performed in California and giving rise to lawsuits challenging whether the rules governing ballot measures were properly followed, the immediate impact of Tuesday’s rights-shredding exercise is to underscore the danger of allowing the ballot box to be used to take away people’s fundamental rights.