Law and Marriage

It's been all over the news the past couple of days: in a 4-3 ruling, the California Supreme Court overturned the law enacted by Proposition 22, stating that only marriages between a man and a woman will be valid and recognized in California. In so doing, the Court held that under the California Constitution, sexual orientation is a suspect classification, similar to race, religion and gender. This is the more remarkable part of the ruling, I think. In essence, it means that state laws discriminating on the basis of sexual orientation must serve a compelling government interest, must be narrowly tailored to achieve that interest, and must achieve that interest by the least restrictive means possible.

Conservatives have already jumped on their soapboxes, saying that the Court is full of activist judges that have flouted the will of the people. They argue that Prop. 22 was approved by 61% of voters, so it should not be overturned by four men and women.

These conservatives are missing a major point. It may have been "the will of the people" to adopt a law to ban same-sex marriage. That doesn't make it proper. The courts are charged with upholding the Constitution. If a law goes against the Constitution, it cannot survive. Prior to 1954, it was the will of the people that whites could use certain facilities, while blacks could not. Legislators in many states were following the will of the people when they adopted racially discriminatory laws. The US Supreme Court held that such laws denied blacks equal protection.

The California Constitution permits voters to amend the Constitution through a ballot initiative, by a simple majority. The proponents of Prop. 22 have submitted an initiative to amend the Constitution by adding to it the language of that Proposition. It is my sincere hope that California voters recognize that voting in favor of that initiative would mean that they, the voters, accept and embrace discrimination.