Prop8 upheld

As expected, the California Supreme Court upheld the constitutionality of Proposition 8, but left intact the 18,000 marriages that were legal during the five months of 2008 prior to the November ballot.

The only surprise was that it was a 6-1 decision, given that the same court in a 4-3 decision last May ruled that same-sex couples enjoyed the same fundamental "right to marry" as opposite-sex couples.

The difference? Prior to May 2008, the CA Constitution did not specifically forbid same-sex marriage. Proposition 8 changed that. So, while in May 2008 the question was one of fundamental rights, the question in May 2009 was the right of the people to change their constitution.

Opponents of Prop8 claimed that a fundamental right cannot be changed by simple ballot initiative but requires a 2/3 vote of the legislature prior to being put on the ballot -- because it is not just an amendment but a revision of the constitution. And thus Prop8 was illegal because it was not properly voted on.

Apparently the justices were not persuaded by that argument. But that quite simply is the explanation of this decision. The opinion, written by the Chief Justice Ronald George, stated that Prop8 did not take away any substantial rights because it left the civil union laws intact; the only thing it did was take away the word "marriage."

Of course, opponents say, quite properly, that this "separate but equal" solution is about as satisfying as the segregation era schools were to African-Americans. Or as someone said, it's like telling blacks they shouldn't mind sitting in the back of the bus because it gets to the destination at the same time as the front of the bus.

Well . . . it will be back on the ballot, and the only question is whether it will be in 2010 or 2012. I'm for going ahead right away for 2010. It will catch the wave of momentum from the three new states that have approved gay marriage -- since the November passage of Prop8.

And some Californians are saying they can't let Iowa and Vermont and Maine get ahead of them -- it's California's place to lead social change.

To me, though, the constitutional question is clear. In California, within just a few years, they have had the state legislature twice approve gay marriage, only to be vetoed by the governor. Then within one year, the Supreme Court struck down the discrimination, it was overturned by ballot initiative, and then upheld by the same Supreme Court. And within 18 months, it could be back on the ballot and go the other way.

That is a chaotic way to play with something that changes people's lives as fundamentally as the ability to marry. How can anyone build a life on such uncertainty? It should not be so easy to make such important changes. So I think this is the best argument against the ballot initiative on this issue. The Court has decided that it was proper to use the easier "amendment" process rather than the "revision" process (which requires 2/3 legislative action), but I say that it SHOULD be harder to make such changes.

If I were a Californian, I would want two things on the ballot in 2010: (1) a reversal of Prop8 and (2) a clarification that mandates a supermajority vote for any change in the constitution that takes away fundamental rights. That's what most states require to change the constitution. That is as it should be in order to protect the rights of minorities from the shifting will of the majority -- one of the hallmarks of a democracy.

Ralph