The California Tragedy

It's a crying shame. November 4th was supposed to be a step forward. It was supposed to be a day that brought people together instead of pushing them apart. It was supposed to be about making the political system work for all Americans, instead of just some of them. For most of the country, this held true, and Barack Obama's victory on Tuesday night was a massive victory for all Americans.

The passage of California's Proposition 8 cast a shadow over that victory. I don't suggest that it casts any sort of pall over President-Elect Obama's victory. What I mean is that this ballot initiative was a black spot on an otherwise incredible night. While there were a few initiatives seeking to limit gay rights, all of which passed in what has to be regarded as a stunning setback to the gay rights movement, the passage of Proposition 8 overshadowed them all. The passage of Proposition 8, if allowed to stand, will set an incredibly dangerous precedent for California, and make no mistake about it: the gay community was on the receiving end of a massive injustice on Tuesday, but the next time, given a few shifts here and there, it could be a racial minority, it could be the disabled, it could be anybody. It could be you.

Constitutions serve an important purpose in our society. While they lay out a number of ground rules for the operation and structure of government, their most important purpose is the safeguard of minority rights. Freedom of speech, freedom of assembly, freedom of religion, freedom of the press, and so many more basic fundamental rights exist and are enforceable because they are constitutionally protected. Imagine if Mormons, a very small religious minority, were told they couldn't practice their religion. The Constitution of the United States doesn't explicitly mention Mormons. So far as I know, the Constitution of the State of California doesn't mention them either. If they were prohibited from practising their faith, the Mormon Church would petition the courts to deal with such an injustice, and the courts in California, I am sure, would rule that their rights had been infringed, and demand that their rights be protected. So imagine now that by a 52% vote, the people of California amended their Constitution to say that all Californians are created equal, except for Mormons. Would anybody, for a moment suggest that such a vote would have an ounce of legitimacy? I doubt it very much.

Here's my point: it is a contradiction at the deepest level to create a system that allows courts to protect minorities, but also allows the rights recognized by the courts to be snuffed out of existence based on a simple majority vote. It's not strong enough language just to suggest that this sort of process doesn't make sense. It's worse than that: it represents a fundamental injustice that erodes the very foundation of a constitutional democracy. Some might call this hyperbole, but it's not. Amending a constitution over an issue such as this simply must not be this simple. The process, due to its far-reaching effects, must be an incredibly arduous one. This process was not.

Cleary, I support gay marriage, but my reason for decrying the decision in California isn't based on my political stance on the issue itself. It's based on what the decision means in the greater scope of democracy in California. Lawsuits have been filed, and while I originally doubted they would succeed, I do have a bit more hope that they will. This initiative was not an amendment. An amendment is nothing more than attaching some new tidbit to a constitution. This initiative was a revision. It changed the substance and the meaning of a fundamental pillar of California's Constiution in a profound manner. If the California Supreme Court is interested in justice and equality, as I believe they are, then they will grant immediate injunctive relief to those who have filed suit in the wake of Proposition 8's passage, and eventually throw it out for its illegal and improper passage. The rights of minorities must never be subject to the whims of a simple majority. To bend on that fundamental principle in even the slightest manner is far too dangerous to our democracy to be left unchallenged.