The California Supreme Court recently announced that it began hearings on March 5 on the constitutionality of Proposition 8 that passed in November. Proposition 8, you will recall, repealed the rights of gays and lesbians to marry.
The practice of judicial review, in which state or federal supreme courts review — and occasionally overturn — legislation when it does not conform to constitutional guidelines has been a controversial one. However, it is central to our democracy.
State and federal supreme courts are as crucial to the maintenance of our democracy as are elected legislatures. It is through judicial review that minority rights in particular are protected.
Judicial review protects us from what Alex de Tocqueville, author of “Democracy in America,” called the “tyranny of the majority,” referring to the systemic danger in a democracy that majority rule often has been used to justify minority oppression.
In 2000, California voters passed Proposition 22, which limited marriage to one man and one woman. In May 2008, the California Supreme Court ruled that Proposition 22 was unconstitutional. The Court held that the proposition violated the equal protection clause of the California Constitution, which forbids the state from denying any group or individual the legal rights it grants everyone else.
Proposition 8 got around this hurdle by actually amending the California Constitution. It seems disturbing that a constitutional guarantee of equality can be revoked by a simple majority vote.
California’s equal protection clause is modeled after the Fourteenth Amendment of the U.S. Constitution, which was originally intended to prevent states from denying freed slaves their constitutional rights, which would have amounted to creating a separate body of laws for them.
This is the unique genius of the U.S. Constitution, and it is what prevents Americans from practicing the sort of ethnic-identity politics seen in Third-World countries. There, minorities are commonly scapegoated by politicians looking to rally their constituencies by railing against “those people.”
There is no room in the American system for second-class citizenship. The U.S. Constitution limits the will of the people; even in our democracy, the people cannot mandate just anything through popular referenda.
The majority is, thereby, forbidden from violating the constitutional rights of any minority. For example, voters could not reinstate racial segregation, or strip women of the right to vote. This is democracy at work and it presumably includes legal marriage rights.
Daily Forty-Niner columnist Becky Yeh did not seem to grasp this concept in her Feb. 16 article “Revisiting Proposition 8 subverts the democratic election process.” Yeh wrote, “It seems that the votes of the people are not significant enough to carry out the change they have sought and chosen through the established processes.”
My point is that an independent judiciary is a crucial part of the established process. Constitutionally guaranteed freedoms can only be abridged when public safety is endangered by the activity in question. Opponents of gay marriage have yet to show any sort of tangible damage that would be done if marriage rights were extended to gays and lesbians. They have only spoken in abstractions.
Yeh erred in writing that the four judges that overturned Proposition 22 took “matters into their own hands against the consent of a voting majority.” They were carrying out their constitutionally mandated duties.
Christopher Herrin is a graduate Religious Studies major and a columnist for the Daily Forty-Niner.
Most homosexuals are opposed to gay marriage? That’s news to me, care to post a link as to what poll claimed this and who actually did the poll?
49er, all seven judges were carrying out their Constitutional duties by reviewing the law. The fact that three judges did not want to overturn the law is irrelevant. All seven voted and the group voting to overturn it carried the day. This is how an independent judiciary works. The fact that you or I may disagree with them is irrelevant.
What is also disturbing is that a simple majority of judges could overturn the will of the people in Prop 22 (you will recall that three judges voted against overturning the law). I hope you are not saying that only four judges carried out their constitutionally mandated duties while the other three willfully disregarded the California constitution.
“Broughtupliberal” Being black, for example, also is not “central to our society” because African Americans are a minority prone to WASP domination. By your argument, they or any minority should not be allowed to procreate out of wedlock or they would “neuter” the institution. It’s the same platform the KKK was built around during their second birth; that all people of color were perverse and deviant, and therefore should not be allowed to “breed.” Institutions, as you describe marriage, are merely policy created and enforced by the majority to subjugate and oppress those the enjoy power over.
Marriage has always been defined has always been defined around natural procreation (which requires heterosex, it cannot be fulfilled with homosex), and the protection/optimal development of children. The overwhelming majority of our hetero brothers and sisters — without whom we would have no “rights” at all, since sexual behavior is not inalienable in and of itself — embrace traditional marriage. Traditional marriage is central to our society, even if we choose not to marry by practicing homosexuality. Homosexual behavior is NOT central to our society. It is a statistically underwhelming deviation from the norm, and because it is a behavior, it is mutable. Further, many homosexuals do not support SSM. They understand marriage is not a “homosexual” right, because homosexuals do not want to fulfill the obligations of the institution. They also understand, as do the majority of their hetero brothers and sisters, that to introduce homosexual behavior into an institution that preserves and promotes heterosexual behavior around natural procreation simply neuters the institution. Renders it invalid. The result is that breeders will have no protections from the anti-breeders. Not only does that not sit well with the breeders, there are many non-breeders who don’t agree with the anti-breeding position, either.
Compare and contrast; one of my high school english teachers drilled that into my head. Compare and contrast: Slave rights and gay rights; the contrasts are easy, the comparisons are profound. Slaves could not get legally married either. They could not create and sign contracts, and what is marriage mostly (legally speaking) but a huge contract with thousands of rights and responsibilities. Navanethem Pillay, the United Nations High Commissioner for Human Rights spoke there last year saying, “That just like apartheid laws that criminalized sexual relations between different races, laws against homosexuality are increasingly becoming recognized as anachronistic and inconsistent both with international law and with traditional values of dignity, inclusion, and respect for all.” Apartheid: A system of laws applied to one category of citizens in order to isolate them and keep them from having privileges and opportunities given to all others. Stop gay apartheid.