A Shopping List of Rights

As Harvey would say, when you let the majority deprive the minority of their civil rights, you start a shopping list, who is next?"
- Stuart Milk, Harvey Milk’s nephew speaking to a rally Wednesday, supporting overturning California Proposition 8.

On Thursday March 5, the California State Supreme Court heard three hours of arguments regarding the validity of California Proposition 8. Proposition 8, which passed with 52% of the voters, define marriage as legal only between a man and woman.

Arguments revolved around three distinct points of law.

The first was whether or not Proposition 8 was a revision to the State Constitution or an amendment to the constitution. The second point was whether the voters may revoke the rights of a specific group of people. The third was on the legality of 18,000 marriages between gay and lesbian couples, performed between May 15, 2008 when the California Supreme court ruled in favor of marriage equality and the November 4th passage of Proposition 8. The court will not directly rule on the legality of Marriage equality.

The first point that was argued was whether Prop 8 was a revision to the constitution. This is an important point. A revision is structural change to government and is difficult to pass. An amendment I fairly easy to get on the ballot and only requires a majority vote to be enacted.

It did not seem to go well for the Anti-Prop 8 Lawyers
(http://www.law.com/jsp/article.jsp?id=1202428843102. The Anti-Prop 8 lawyers argued it was revision as the proposition took away acknowledged rights for a specific group of citizens. Kenneth Starr (yes that Kenneth Starr) argued for the Pro-Prop 8 forces that Prop 8 was simple amendment to the constitution that could be passed by a majority of voters. Prop 8 was not a structural change to how California government is run. His argument seemed to carry the day.

Next up was whether Prop 8 actually denied a class of citizens their rights. Kenneth Starr argued the “bundle of rights” afforded to gays and lesbians by civil unions were untouched by the redefinition of marriage. He further argued that the right offered by civil unions was no different than the rights offered by marriage in California. The Anti-8 legal team argued that, regardless of the rights offered, the term civil unions was in and of itself discriminatory and a violation of privacy. Furthermore, the voters could not take away rights already guaranteed by the courts. Starr’s position was that voters had the “raw power” to decide who had rights. The Justices themselves asked questions trying to draw the line where the voters' rights to revises the constitution ends and the rights of citizen begins.

The one area where the Anti-8 lawyers were on solid ground with the Justices was their argument that 18,000 couples had put their faith in the Court’s earlier ruling on their rights to marry. The Justices seemed to agree.

Based on questions the Justices were asking predict the Court will uphold Proposition 8 by 5-2. The only ray of hope here is the most observers predict that the Court will unanimously uphold the legality of same sex marriages performed before November 5th are still legal.

It will be devastating if the Court upholds Proposition 8. If this happens, the court would seem to say that everyone’s rights could be put on the ballot at any time. This is what the framers of the US Constitution feared. They structured the government as a republic and not as a democracy, precisely because they were afraid that “mob rule” of democracy would trample on the rights of the minority. For this reason they made it difficult to amend the US Constitution so people’s rights would not be subject to politic whim and trend.

In the long term having the court uphold Proposition 8 actually speeds marriage equality in California. It is only a matter of time before marriage equality is once again on the ballot. Since Prop 8, there has been a strong and distinctive shift in favor of marriage equality. One of the main indications on whether a voter was for or against Proposition 8 was age not race. The younger the voter more likely that voter was to vote against Prop 8. In two to five years these young voters will be a solid block voting for marriage equality and making it the law.

If however the courts overturn Proposition 8 it may take a full generation for the issue to be settled. Like abortion marriage equality will become the staple of the culture wars to be used over and over again as a wedge issue. Arguably a woman’s right to choose is more vulnerable because of the outrage over Roe v. Wade and its use as a political rally cry for social conservatives. If Proposition 8 is upheld I hope the shopping list of rights is short and what is lost can be restored.