The Prop. 8 Fight Continues

Yesterday the Supreme Court of California revisited the contentious issue of same-sex marriage and heard arguments on the validity of Proposition 8 which passed last November. (Background on Prop 8 see here). On Monday, the California legislature passed two resolutions declaring that, "[Prop 8] was an improper revision of the state constitution. Sweeping revisions can only be adopted if they originate in the Legislature, gain two-thirds approval in that body and then win approval by voters." Thus, they argue Prop 8 is invalid because it did not obtain the two-thirds approval in the legislature.

Not only did Prop 8 fail to get two-thirds approval of the legislature, but earlier in 2008 the legislature voted to extend full marriage rights to same-sex couples. Obtaining two-thirds support in the legislature was never going to happen. But the problem/issue is obvious. The judiciary has ruled in favor of same-sex couples, the legislature (multiple times) has ruled in favor of same-sex couples, the executive branch has deferred to the judiciary, but the people (citizens of CA) have voted "no" on extending those benefits to same-sex couples. Who is going to budge? Who should have the final say in the matter?

This whole problem stems from California being a referendum/initiative/proposition happy state, thus leaving legislation up to the citizens instead of the legislature. Some people like this form of uber-democracy stating that the power is with the people and the government should be bound by their wishes and demands. I completely disagree. I'm going to avoid the argument that there are so many stupid people out there they should not have legislative powers. Instead, I will argue it completely goes against the structure of our government and the intent of our framers. Our government is based off the idea of a constitutional democracy/republic. (Yes I know they are two very separate classifications, but we have moved closer to a democracy since our founding) The legislature was created to conceive a deliberative body of elected citizens who would address issues, debate them among themselves and come to a political and constitutional agreement on how to deal with the problem/issue. By allowing the legislative body to deliberate, all sides of the argument can be exercised and (theoretically) the free exchange of ideas will give us the most practical solution to the problem. By presenting legislative powers or issues to the public at-large, we completely ignore the benefits of a slow, principled body of lawmakers. Instead, we see majority tyranny where powerful groups suppress the rights of politically unpopular groups, hyperbolic rhetoric, demagoguery (The call stated the vote was for the "soul of the nation," and Pastor Rick Warren constantly uttered the lie that recognizing same-sex marriage rights would prohibit religious organizations from preaching against homosexuality) and no accountability. Who will vote out the voters of propositions if they lead to dreadful/damaging policy? I think we need to heed the advice of Alexander Hamilton in Federalist 71:

The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they entrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests.

In my personal opinion, I don't think a specific branch of government or the people have the ability to preclude same-sex couples from marriage rights. The Supreme Court has established marriage as a fundamental right, stating in Loving v. Virginia, "The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." However, opponents will argue that the court in Loving was referring specifically to marriage as an institution between a man and a woman, not same-sex couples. This is a valid argument and has not yet been visited by the court. Many will argue that a state should be free to establish their own legislation dealing with the health, safety, and welfare of its citizens (which I agree with) but I don't believe the state possesses the power to infringe on a fundamental constitutional right, "When a state exercises power wholly within the domain of state interest, it is insulated from federal judicial review. But such insulation is not carried over when state power is used as an instrument for circumventing a federally protected right." Gomillion v. Lightfoot. Yes, I know we aren't dealing with a Fed/State battle, but the argument is analogous. I also believe same-sex marriage is protected by the fundamental right to liberty. Furthermore, preventing same-sex couples from marrying is a violation of their 14th amendment equal protection rights. See Romer v. Evans, Lawrence v. Texas and this law review article.

Time and time again I've pointed out that our country was founded on the principles of life, liberty and the pursuit of happiness. An extremely important part of securing liberty is allowing others to do whatever they please as long as it does not harm anyone else. Mere disapproval is not enough to invalidate laws or protections from others. I'm not sure which way the court will rule on this issue. I hope it is in favor of same-sex couples, but who knows. If the court rules the other way, perhaps in time it will be viewed as a success and a more solid claim of legitimacy for same-sex couples as Andrew Sullivan explains:

Who wants the critical moment in the securing of marriage rights to be imposed by a court against a clear majority vote of the citizens? Give it time, and conviction, and we'll win where it matters most: at the ballot box.