Prop 8 Decision: How to Strike Balance Between Majority Rules and Minority Rights

A 6-to-1 decision this week from the California Supreme Court ruled against the American Civil Liberties Union in Strauss v. Horton, recognizing same-sex partnerships with many, though not all, of the legal rights of marriage. The official court opinion upheld the validity of Proposition 8, which was adopted by California voters last November, including a new section (7.5 to Article I) in the California Constitution: “Only marriage between a man and a woman is valid or recognized in California.” That decision was hailed by opponents of same-sex marriage, such as ProtectMarriage.com, but it left supporters of gay marriage hanging as the next stage in their fight against Prop 8 begins. Equality California and the Courage Campaign are working to take the issue back to the ballot box – to repeal Prop 8 – while conducting statewide polls to gauge peoples’ attitudes on same-sex marriage.

Last year the American Civil Liberties Union, National Center for Lesbian Rights, and Lambda Legal filed a lawsuit challenging the validity of Proposition 8 in the California Supreme Court on behalf of six couples and Equality California. That legal challenge consists basically of three points:

1. Prop 8 is a revision, not an amendment, of the states' constitution, and therefore requires either a two-thirds vote of each house of the state legislature and a vote of the people, or a constitutional convention and a vote.
2. Prop 8 may violate the principal of trias politica, or separation of executive, legislative, and judiciary powers.
3. The “inalienable” right to marry cannot be determined by majority vote (unless, according to the attorney general, there is state interest in doing so).

Former California State Senator Sheila Kuehl was the first openly LGBT person elected to the California Legislature. She commented on the ruling, arguing that the court lost its way issuing this “slim and dishonest statement that same sex couples are not denied legal rights by denying them the ‘word’ marriage. The Court errs.”

Others agreed. The San Francisco police department alone reported arresting some 200 protesters, most of whom are members of One Struggle, One Fight, a civil rights coalition using civil disobedience.

Assemblyman (and gay rights activist) Tom Ammiano also decried the court's move as a reminder that “equality cannot be denied to any group and it is only a matter of time before justice prevails.”

ACLU head Anthony Romero indicated that the setback was particularly odd in light of “a recent Iowa Supreme Court ruling saying that it is unconstitutional to keep gay couples from marrying – and the passage of laws opening marriage to everyone by the Vermont and Maine legislatures.” Romero concluded that public support for marriage for same-sex couples is gaining ground, but California is being left behind. Romero spoke at The Commonwealth Club recently, highlighting the ACLU's challenges to the U.S. Patriot Act, litigation on the torture and abuse of detainees in U.S. custody, and challenges to the Bush administration’s illegal spying program. (Romero was the inaugural speaker in The Club's series on The U.S. Constitution in the 21st Century.) He is also the first openly gay man (and the first Hispanic) to serve as director of the ACLU. Romero and the ACLU argue that the Prop 8 debate is unique: The first time a ballot initiative has been used to change the California Constitution and strip away existing right for a particular group – a “suspect class.”

Antidiscrimination law is a cultural thread that defines progress in American society: A nation’s ongoing attempts to mitigate oppression of cultural minorities and compensate for systemic disadvantage, exploitation and injury. Tension between constitutionally protected civil liberties and the democratic mandate of majority rule also exploded during early deliberations that led to the Brown v. Board of Education decision, which was also fraught with conflict over whether popular opinion could deprive a minority of a constitutional right. Jusitice William Rehnquist’s court memos explored this key question of “Whether, in the long run, it is the majority who will determine what the constitutional rights of minorities are?”

As for the Fourth Estate, The Commonwealth Club also explored media coverage of Proposition 8 and its aftermath (Wednesday, April 15), highlighting the work of gay journalist/blogger Rex Wockner, Cynthia Laird, of the Bay Area Reporter, Equality Camp organizer Cathy Brooks, and Sandip Roy, from New America Now (KALW).

--By Andrew Shaw