The Bright Coast

Progressive Thoughts from San Diego Alums on Law, Politics, and Culture

The Power of 50% Plus One

Posted by demkid on March 7, 2009

I watched some of the oral arguments on Thursday in the cases seeking to have the CA Supremes overturn Proposition 8.  Even though I’m not a big fan of his, I thought Kenneth Starr was impressive in front of the justices.  Unfortunately, it looks like the right of gays to marry in this state will have to be resurrected by the People, not the judiciary.  (For a good article on the proceedings, see this.)  Is the Golden State’s initiative process seriously flawed, in that 50% plus one can deny what many consider “fundamental” rights to the people of this state?  Sure.  However, that’s the way things are, and a clear majority of the justices on Thursday seemed hesitant to take away this power to amend the constitution.  It’s astonishing that in less than 100 years, the CA Constitution has been amended 500 times, whereas the Constitution of the United States (in over 200 years) has just 27 amendments.  As much as I support gay marriage, I don’t see how the power of the “People” (even though this references 52% of the people who happened to vote in 2008) can be denied in California.  As one or more justices noted, how can they say what rights are fundamental, and which are subject to amendment by voters?  Gay marriage isn’t protected by the U.S. Constitution, and after Prop. 8, it isn’t protected by the California Constitution.  It’s a tough pill to swallow, but it definitely isn’t the end of the road for supporters of equal rights.  Times are changing, and the next statewide election is just a year away.  It’s only a matter of time before the views of the electorate change for good.  Good or bad, it looks like it’s this electorate, and not seven members of the judiciary, who will be the ultimate decisionmakers.

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