Probably one of the most dramatic civil rights stories of the recent election was the passage of Proposition 8 in California taking away the right of gay and lesbian couples in the state to marry. It was a sad, angry day for many Californians. And as they (and others across all 50 states) poured into the streets to protest its passage in the weeks following the election, opponents of the ballot initiative filed a petition with the California Supreme Court to invalidate the proposed constitutional amendment.
The case against Prop. 8 is potentially damning. Specifically, opponents argue that it substantially revises the California state Constitution and undoes its core commitment to equality for everyone. If that’s the case, then the amendment is no amendment at all and would require substantially more than 52 percent of the vote.
There’s enough meat in the argument that the California Supreme Court agreed to take the case, and at the same time, it’ll address the status of the 18,000 gay marriages in the state. Marriages that are in very real danger of dissolution as a result of Prop. 8. The first legal briefs are due to the court Dec. 19.
And for those that might argue that “activist” judges have no business overturning a popular vote, we offer one final thought from the 1943 U.S. Supreme Court ruling in Board of Education v. Barnette: “One’s right to life, liberty, and property, to free speech, a free pass, freedom of worship and assembly and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”