This So-Called Post-Post-Racial Life

May 27, 2009

Read It, and Don’t Weep

Filed under: Uncategorized — Tags: , , , — pprscribe @ 9:52 am

The decision by the California Supreme Court upholding last November’s Proposition 8 outcome is on-line in its entirety. It is 185 pages long, but not too complicated to understand.

The gist of the decision is not nearly as dire as some reports are making it out to be. This is not an against-marriage-equity thing; It is a procedural thing. Further, it is a California thing.

California is a funky place to do democracy. From the decision transcript (available here):

In considering this question, it is essential to keep in mind that the provisions of the California Constitution governing the procedures by which that Constitution may be amended are very different from the more familiar provisions of the United States Constitution relating to the means by which the federal Constitution may be amended.  The federal Constitution provides that an amendment to that Constitution may be proposed either by two-thirds of both houses of Congress or by a convention called on the application of two-thirds of the state legislatures, and requires, in either instance, that any proposed amendment be ratified by the legislatures of (or by conventions held in) three-fourths of the states.  In contrast, the California Constitution provides that an amendment to that Constitution may be proposed either by two-thirds of the membership of each house of the Legislature or by an initiative petition signed by voters numbering at least 8 percent of the total votes cast for all candidates for Governor in the last gubernatorial election, and further specifies that, once an amendment is proposed by either means, the amendment becomes part of the state Constitution if it is approved by a simple majority of the voters who cast votes on the measure at a statewide election.

As is evident from the foregoing description, the process for amending our state Constitution is considerably less arduous and restrictive than the amendment process embodied in the federal Constitution, a difference dramatically demonstrated by the circumstance that only 27 amendments to the United States Constitution have been adopted since the federal Constitution was ratified in 1788, whereas more than 500 amendments to the California Constitution have been adopted since ratification of California’s current Constitution in 1879.  [Emphasis added; Citations removed for ease of reading]

Get that? Twenty seven versus 500+—in a much more expanded time frame, even. What happens now is that the fight will go on. And that fight must be, in my opinion, also on the procedural front and settled as a matter of constitutionality. I respect that many people are fighting the battle to change hearts and minds. But that can take a loooong time—if it ever happens fully at all. The dissenting opinion frames the way forward as a matter of the principle of  equal protection:

The equal protection clause is therefore, by its nature, inherently countermajoritarian. As a logical matter, it cannot depend on the will of the majority for its enforcement, for it is the will of the majority against which the equal protection clause is designed to protect.… [Emphasis added]

In other words, the rights of a minority group, who is discriminated against by a majority, cannot be decided by the decision of that majority. The dissenting opinion concludes:

…Proposition 8 represents an unprecedented instance of a majority of voters altering the meaning of the equal protection clause by modifying the California Constitution to require deprivation of a fundamental right on the basis of a suspect classification.  The majority’s holding is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution.

This could not have been the intent of those who devised and enacted the initiative process.  In my view, the aim of Proposition 8 and all similar initiative measures that seek to alter the California Constitution to deny a fundamental right to a group that has historically been subject to discrimination on the basis of a suspect classification, violates the essence of the equal protection clause of the California Constitution and fundamentally alters its scope and meaning.  Such a change cannot be accomplished through the initiative process by a simple amendment to our Constitution enacted by a bare majority of the voters; it must be accomplished, if at all, by a constitutional revision to modify the equal protection clause to protect some, rather than all, similarly situated persons. I would therefore hold that Proposition 8 is not a lawful amendment of the California Constitution. [Emphasis added]

So the beat goes on. I have said elsewhere that this is the time for marriage equality. I think that there is a momentum, an arc of history, that is bending toward it. And I think that those who oppose same-sex marriage—no matter how passionately or sincerely they feel it—are on the wrong side of history on this one.

Time will tell. But I am not weeping.

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