We are a nation of laws. Lawmaking belongs to legislatures, but occasionally, the people write laws of their own through ballot initiatives. Regardless of their origin, all laws are subject to judicial review, something a small band of zealots in California would like you to forget.
Beyond the core issues surrounding Proposition 8, which reversed a landmark ruling from California's Supreme Court allowing gay couples to marry, lies a far deeper question affecting the very nature of our democracy: can the court review laws?
It sounds like an absurdly basic question, and it is, but it's one of the first questions California's Supreme Court will tackle today. California law is clear, saying plainly that the "judicial function... [is] to declare law and determine rights."
Whether the court can do its work and evaluate Proposition 8 hinges on a technical question: was Proposition 8 an amendment or a revision?
California's Constitution distinguishes between the types of changes that can be made through ballot initiatives. There are amendments and revisions. Amendments clarify confusions and help streamline the Constitution. Revisions sweep the rug out from under the Constitution by making wholesale changes to the document's founding principles. Amendments can be made through ballot initiatives, but revisions require a public discussion and clear decisive action from the people or their representatives. 8% of Californians can't rewrite the Constitution. For that, two-thirds of the legislature must act, or the people need to get together and throw themselves a Constitutional Convention. Proposition 8 failed to earn sufficient support from the legislature to support a proper constitutional revision, and was barely able to muster 52% of the popular vote.
Who came up with the distinction between amendments and revisions? The people! It's part of the 1911 ballot initiative law that started this whole mess in the first place. The law "was intended to allow voters to bypass a foot-dragging legislature," wrote three highly esteemed Constitutional scholars, "not to oppress vulnerable groups or strip courts of their traditional role of protecting minority rights."
Who's charged with deciding what's an amendment and what's a revision? Well, now you see why Proposition 8 belongs before the California Supreme Court. The judiciary sifts through the facts and pulls out the truth. There is an honest debate as to what Proposition 8 actually is, and it is a debate that only the court can resolve.
Beyond the legalese, the court not only needs to act, but it needs to strike down Proposition 8 as a grossly unconstitutional expression of hatred and discrimination. The Constitution exists to protect the rights of all citizens, not just fleeting majorities or well-organized campaigns. If the majority may peel away "inalienable rights" from minority groups, where does the discrimination end? Today it's gay and lesbian couples, tomorrow it could be Muslims, Asians, or women.
California's courts have ruled that all provisions of the Constitution "constitute the ultimate expression of the people's will." Turning our back on inalienable rights is unconstitutional, immoral, and downright hateful. Bigots may enjoy equal access to our courts, our government, and ballot initiatives, but try as they might, they should never be allowed to deprive fellow citizens of their fundamental rights. We are a nation of laws.