(Community Matters) I’m not yet able to articulate my perspective of today’s California ruling against gay marriage, other than to say I see it within the context of a majority being able to vote out rights of a minority.
In the interim, I’ve received University of Pennsylvania Law Professor Tobias Barrington Wolff’s permission to quote his comments:
The majority did reaffirm as the law of the land the portions of their earlier decision that survive Proposition 8 as binding precedent — strict scrutiny for antigay discrimination, and the constitutional right of gay couples to enjoy equal substantive and dignitary treatment in the public acknowledgment of their relationships. (How that is possible when the we are selectively deprived of equal participation in civil marriage is for someone else to explain.) That is a very important ruling. It does not represent a change of heart for the three original dissenters, however, but rather a statement of respect for binding precedent — as evidenced by the long passage near the beginning of the opinion reiterating the views of the original dissenters in the marriage case, which they probably required to be included in order to go along with the reaffirmation of the surviving parts of that ruling. Still, it is significant that the full Court was prepared to stand by the surviving portions of their original ruling. Justices don’t always do that when they have dissented in an earlier decision.
But that is the only good thing to say about the majority’s analysis. The rest of the decision is appalling.
In our brief on behalf of the NAACP, APALC, MALDEF and EJS, we argued that the California Supreme Court could not uphold Proposition 8 without also holding that the initiative process could take fundamental rights away from any constitutionally protected minority — not just on the basis of sexual orientation, but on the basis of race, gender or religion. And that is exactly what the California Supreme Court held. In an opinion of shocking breadth and sweep, the Court explicitly held, as the law of California, that the state constitution can be amended to take rights away from people of color, women, religious minorities — any constitutionally protected minority — through the use of the ballot initiative and a simple majority vote. They may have some recourse in the Federal Constitution, but the California Constitution imposes no limitation. The more deliberative, protective procedures that the California Constitution requires for revision — requiring a 2/3 vote of the legislature to propose major constitutional changes — now have no application to amendments that selectively target protected minorities. The one constitutional principle that should not be subject to simple majority vote — the principle that protects historically disfavored minorities from selective oppression by the majority — is now subject to popular veto in California.
Today is a devastating day for the LGBT people around the country, and it is a dark day for all protected minorities in California. It is also a day for remembering the importance of political coalition – of recognizing our common cause and our common struggle. In order to uphold the ability of the majority to use the ballot to selectively target LGBT people, the California Supreme Court took vital procedural protections away from all constitutionally protected minorities. If we needed an illustration of the principle that we are all in this together, the California Supreme Court has provided a vivid one.
Community Matters 