In re Marriage Cases

On May 15th 2008, the California Supreme Court made not one, but two landmark decisions. The most obvious decision was that marriage was a fundamental right, and that any ban against gay marriage was in violation of Article 1 Section 7 of the California Constitution (which I have quoted before). The other part of the ruling was not so obvious, but it is very important when considering what the court will say regarding proposition 8's challenges.

In the May ruling, the Court also stated that any law directed against gays and lesbians are subject to "strict scrutiny" and that "statutes imposing differential treatment on the basis of sexual orientation should be viewed as constitutionally suspect under the California Constitution's equal protection clause."


This to me is a strong hint that the supreme court will overturn proposition 8 on the basis that it is unconstitutional, and discriminates against a minority that cannot defend itself against a majority vote. On November 19th, the Court decided they will hear the case in March 2009. Had they refused, it could have set the movement back years.


The ballot initiative process in California lacks oversight. For an initiative to make the ballot, something like (and I should check this) 100,000 signatures is required. Proposition 8 was the first time ever Californians had voted to take away rights from a group of people. This invites a "who's next?" attitude to the ballot initiative process. If suddenly the majority of voters can take away the rights of a minority then who is to say that with as many signatures we could not say "All Mormons are banned from the state of California, and must be put in jail for life?" Or , "All black people must only speak when spoken to?" Or "All women with large breasts should walk around topless". None of these make sense and would be in extreme violation of people's individual liberties. It shows where voting on people's civil rights can get you. In order to avoid a number of ridiculous initiatives where a simple majority of voters take away the rights of a minority, the Court will uphold it's May decision and reject proposition 8.


Sometimes the majority is wrong, and we need laws that can protect people from mob rule. The California Supreme Court decided not only that gays and lesbians are entitled to equal protection under the law, but also showed that they would not stand for efforts to discriminate against people based on sexual orientation. I believe that they will do so again, despite threats from gay rights opponents who claim they will seek to recall the judges who vote in favor of overturning the initiative. To them I say "If you don't want gay marriage...don't get one and shut the fuck up."