A few weeks ago I wrote about the lawsuits that have been filed against Prop 8. The lawsuits made me uneasy. I wrote:
I don’t think this is a good idea. Not only is it awful public relations, but it will probably lose.
Well, I’ve changed my mind. I actually changed my mind a week or two ago. Here’s why.
First, I’ve decided that it’s not necessarily a losing proposition after all. The cramped legal reasoning I linked to on volokh.com ignores the following: if a bare majority of Californians can vote to strip a constitutionally protected right from one minority group, what’s to stop them from stripping a constitutionally protected right from another minority group? One of the points of a constitution is to prevent majorities from taking away certain rights of minority groups. Simply put: if a majority can take away your rights, then you have no rights to begin with. An unprotected right is an oxymoron.
Second, it might not be awful public relations, and even if it is, who the hell cares? If the California Supreme Court throws out Prop 8, what can the anti-marriage crowd do? The state legislature won’t ban same-sex marriage; it’s already twice passed bills to legalize it, only to be vetoed by Schwarzenegger because he said, nonsensically, that the decision should be left to the courts. There’s not going to be a Federal Marriage Amendment to ban same-sex marriage nationwide: if it couldn’t even muster the necessary 2/3 of the House and Senate under Republican control, it’s not going to happen under Democratic control. (More here. I disagree with Andrew Sullivan on this. His reader is right.)
There’s still an iffy chance of success. But it’s possible the California Supreme Court will make the right decision. I hope so.
See, that’s what I was thinking about the whole thing – I thought the Constitution was there to protect the minority from the majority (among other things). Bummer all those folks have to wait until March or later to find out if their marriages will remain valid.
Yes, I haven’t understood why Sullivan can’t see this. I mean, yes, obviously, we need to continue to do more outreach, and we need to do it in a better way than the HRC model, which is essentially to appeal to everyone’s better angels without ever mentioning the word “gay.” (Note the name of the organization, for example.) It would be lovely to launch our own proposition, do the necessary political groundwork, and have Californians vote us the right to marry. What an amazing kumbaya moment that would be! But really, we don’t have to wait for that. When it comes right down to the essence of this particular constitutional issue, the notion that one group of people can vote away the rights of another group of people simply because they are less numerous is distinctly nefarious and a troubling precedent, to say the least.
This is no longer about same-sex marriage; that issue was settled. This is about the fundamental guarantees of our constitutional republic. The court absolutely cannot find that a bare majority has the power to strip established rights from any minority they choose simply because of cultural disapproval. Might does not make it right!
You know, I read a comment during the campaign from someone who actually wrote that the role of the Constitution was to protect the will of the majority. I’m not joking – that’s really what some people believe. Tell them that the Bill of Rights was actually set up to protect minorities, by guaranteeing freedom of religion and speech for example, and they simply don’t get it.