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18 Nov 2008 08:44 pm

Dissents Of the Day

A reader writes:

The suit against prop 8 centers around whether the action prop 8 takes can be considered an "amendment" as defined by California - and thus subject to the minimal threshold requirements that such amendments have - or whether the type of action that prop 8 proposes cannot be taken without "revising" the constitution, and thus passing the much more significant barriers that process entails. Again, this isn't just about gay marriage, it's about preserving the integrity of the state constitution and distinguishing it from just another piece of legislation. You can't have fair play without a coherent set of ground rules.

Another reader is much more blunt:

The critical point that is put forward in every brief seeking Prop 8's invalidation is that Prop 8 stands for more than gay marriage: it stands for the premise that any minority group can suddenly be targeted by the majority for discrimination.  It essentially eviscerates the Equal Protection Clause of the California Constitution.  This because a) the Supreme Court has held (in  Perez, some 20 years before Loving) that marriage is a fundamental right and b) in the Marriage Cases, that homosexuals are a suspect class.  Unless Prop 8 somehow by implication reversed either of those, Prop 8 means that any time we wanted to be mean to some minority group, we could.

So, just to help you think about this a little more clearly: Prop 8 stands for the idea that we could put on the ballot tomorrow the question of whether Catholics could marry.  We could also put on the ballot the question of whether someone with HIV could vote or own property.  We could put on the ballot the question of whether mexican catholics can be discriminated against in housing or employment.   

You just don't get, do you, up in your ivory tower, that the courts are the ultimate backstop for human rights.  Remind me, did desegregation come because of a referendum?  No, that was Brown v. Board.  Oh, and wait.  How about interracial marriage?  Nope, that was Perez in California and Loving v. Virginia federally.  And I will wager a year's salary that in both cases, had the question been put to a vote, it would have come out completely differently.  And if it were put to voters today, I have no confidence that they would vote to sustain them.

That's the point of the Equal Protection Clause.  (Aside--do you then also disagree with Romer v. Evans and Lawrence v. Texas?)  The rights of minorities aren't subject to extinction by the majority's fiat. 

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