Andrew Sullivan today wrote that California’s Prop. 8 “should stand, and the court should decline to reverse it. We lost. They won in a fair fight. No whining.”
First of all, “we” lost? Sullivan doesn’t live or vote in California. He didn’t contribute may not have contributed (ed.: as Jeff S. comments, the donor database doesn’t appear to be complete, so I can’t assume that Sullivan didn’t donate) a penny to defeat Prop. 8 (at least as of the most recent information in the donor database, from November 6 . He already has taken advantage of his right to legally marry his own same-sex partner in Massachusetts and his rights weren’t taken away by popular vote. How exactly is he part of “we”, and just why should we care what he thinks about this?
Second, by what stretch of the imagination was this a “fair fight”? Frankly, yes, I’d have preferred if Prop. 8 had been defeated at the ballot box, for once and for all. The elected representatives of the people, after all, approved same-sex marriage twice, but the governor vetoed it, saying that the Supreme Court should be the ones to decide.
And when it did go to the people, it won —and even so, just barely— by saturating the air waves with hateful lies and misrepresentations that would never be acceptable if used of any other minority, through appeals to irrational fears and bigotry, and with millions of dollars and person-hours of volunteer time essentially mandated by the Mormon church of its membership, much of that money and time coming from people who don’t even live in the state. And it won through the absurdity of a constitution that can be so easily amended, but not so easily revised. That’s hardly “fair.”
Moreover, Prop. 8 never should have been placed on the ballot for majority vote in the first place, and the California Supreme Court seemed to agree in its May ruling (hat tip Pam’s House Blend) when it wrote:
”..under this state’s Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process [emphasis mine].”
As I wrote a few days ago, our constitutional republic is supposed to guarantee that the rights of an unpopular minority are not subject to the vote of a majority; we have constitutions and courts specifically to protect those rights from popular vote.
It seems to me, then, that the court has a responsibility not only to hear the cases before it in the matter of Prop. 8, but that it should act to overturn it. Otherwise, we and they have effectively agreed with the popular, albeit incorrect, opinion that “the majority is always right,” that the courts are “activist” as opposed simply to fulfilling their constitutionally mandated role, and thereby we essentially weaken the very foundation of our government. That is to say, if we agree that it’s okay to let the majority rule in the case of equal civil rights for gays and lesbians today, and that the courts are prohibited from doing their job to protect those rights, how can we ever justify in any past or future scenario that the majority shouldn’t be able to rule in taking away rights from other minorities, including racial or ethnic minorities, or religious minorities, and that the courts must remain silent and accept the will of the people then, too? Why shouldn’t the majority be able to make interracial marriages illegal again, then, or to make civil marriage illegal for atheists or any other unpopular minority?
Finally, Sullivan also writes, “It is one thing to decide that gay couples are barred from civil equality from now on, but to reach back and strip couples who married in good faith under the law is excessive.” I’m certainly in agreement that it would be wrong for the state to forcibly divorce couples who already legally married in California because of majority rule, though I’m unsure why Sullivan should be able to find this any different than allowing the majority only to prevent any such marriages in the future. I’m particularly chilled by the cavalier manner in which Sullivan apparently finds it acceptable to ban gay couples from civil equality, under any circumstances, just as long as we agree that it’s unacceptable to take away his marriage. I’m sure your wedding cake tasted delicious, Andrew; thanks so much for your “let them have cake” attitude to those of us here in California who deserve the same equality.