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Proposition 8: Will of the People?

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In California, some consider the fight to legalize same-sex marriage as an effort by a small minority to circumvent the will of the majority. Supporters of recently enacted Proposition 8-a constitutional amendment eliminating same-sex marriage in California-hailed the initiative as immune from challenge. The amendment was designed to be invincible from attack by the courts, which have overturned previous voter initiatives banning same-sex marriages in California and Connecticut. Opponents attacked these rulings as going behind the people’s back and forcing a small minority’s agenda on society. Now, they insist, the people’s will has finally triumphed.

Not so fast. A case filed by the ACLU in the California Supreme Court on November 5th, 2008 charges that the Proposition itself is an unconstitutional attempt by the voters of California to revise the constitution, not amend it.

According to Article 18 of the California Constitution, amendments to the Constitution can be made by popular vote. Revisions, however, require legislative action. A revision, according to the California Supreme Court, is a change to the fundamental underlying principles of the Constitution itself. An amendment is merely an addition or change within the lines of the original instrument, or any change designed to better carry out the fundamental principles of the Constitution.

The California Supreme Court has frequently stated that equal protection is a fundamental principle of the California Constitution. Court documents filed for the petitioners argue that because Prop 8 eliminates the right of same-sex couples to marry, Proposition 8 is revising the Constitution by mandating government discrimination of a suspect class, contrary to the Constitution’s underlying principles of equal protection. (Same-sex couples were designated a suspect class with the fundamental right to marry in the In re Marriage cases of early 2008.) The Proposition also fundamentally alters the role of the courts by stripping them of their ability to protect the fundamental rights of a minority against the tyranny of the majority, a basic principle of our Republic’s system of checks and balances.

It makes sense initially to balk at the Supreme Court stepping in and twice overturning laws enacted by the people in democratic elections. However, what is being lost in articles and commentaries on this important case is a discussion of the true nature of government, and the definition of “will of the people.”

The government cannot enforce the will of the majority when it lacks the authority to do so. To accomplish the extraordinary feat of enforcing government discrimination and circumventing the underlying principles of our Constitution, a simple majority vote cannot suffice. The will of the people was permanently embodied in the California Constitution when it was ratified. Their will was ensuring equality for all and the protection of human dignity and liberty, and this voice should always speak louder than a simple majority vote. Hopefully that will was not changed by Proposition 8.

Ken LaMance

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