For the past week or so, I’ve been wondering if some of those organizing the rallies against Proposition 8 hope to influence the California Supreme Court, using the appearance of social unrest as a means to push the court to overturn the popular proposition.
It looks like the unhappy activists may get their way. The state Supreme Court will hear a challenge to “the legality” of Proposition 8.Â At issue is whether Proposition 8 is a revision to the state constitution or an amendment:
Unlike constitutional amendments, which can qualify for the ballot with signatures on initiative petitions, revisions can be placed on the ballot only by a two-thirds vote of the Legislature or a state constitutional convention.
The state’s high court has defined a constitutional revision as a fundamental change in government structure and has struck down only two initiatives as revisions. The last time was in 1991, when the court overturned provisions of a measure that would have required California courts to follow federal standards on criminal defendants’ rights rather than relying on the state Constitution to grant broader rights.
I contend it’s an amendment not a revision.Â The constitution’s silence on the standards for marriage argues against the notion that Prop 8 revises the fundamental structure of California government and the basic rights it protects.
For it to revise, it would have to alter language in that document itself. All it does is add a provision which changes only the state Supreme Court’s understanding of the document, an understanding based on finding a notion (â€dignityâ€) in the constitution which just isn’t there.
(When I searched the state constitution for that word, I found it only in Article 1, Â§28 (a)(2) on the treatment of victims of crime.)
Unless the opponents of Proposition 8 can provide evidence that the framers of the California constitution intended the state to recognize same-sex marriage, I don’t think they have much of a case. The “right” that activists claim exist was created by the state Supreme Court only this past May.
While I hope the court allows those who got married in recent months to retain the state recognition of their unions, I do believe the Court should let Proposition 8 stand, not because I like the idea of a provision defining marriage in our state constitution, but because I prefer democracy to oligarchy. And we’d have the latter if four justices were allowed to determine the state’s standards for marriage.
The antics of those upset by the success of the initiative suggest that all too many of them aren’t ready for the responsibilities of marriage. That said, many gay people are. It’s too bad they’re not leading the debate on this issue.