Q. When is a fundamental right not a fundamental right?
A. When it is protected by the California Supreme Court.
Only a year ago the California Supreme Court held that marriage was a fundamental right and quoted the U.S. Supreme Court to stress that:
One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
That was then; in yesterday's ruling on Proposition 8 the court held that a fundamental right can be stripped by a mere thirty percent of the electorate.
As Justice Moreno pointed out in his dissent, "under the majority's view, it is not clear what sorts of state constitutional constraints limit the power of a majority of the electorate to discriminate against minorities" Thus, the operative question today is not about the outcome of same sex marriage in California, but rather "who's next?"
It is fitting that the decision comes amidst the state budget crisis since the two events demonstrate how California's system of government is broken. Today's Supreme Court decision opens the door to a macabre resolution of both issues whereby voters could approve a constitutional amendment establishing a lottery system similar to the Hawthorne short story except that people would pay to select which disfavored group to discriminate against during the next year.
If Proposition 8 supporters could generate $40 million, surely there are people who would pay $5 to permit discrimination against whatever group they dislike. In addition, targeted groups would need to participate to make sure that they are not chosen. Such a lottery in California's polyglot culture could not only raise billions, but by putting people's rights at risk and forcing them to pay to protect them, Californians would value the fleeting rights afforded by the state constitution.
There are those who would say this could never happen in America. Let them come to Sacramento.
Yesterday's decision, in essence, made this a reality in California. Any one of us potentially could have our rights stripped while the California Supreme Court simply sat and watched. The only difference between reality and my outrageous lottery proposal is that in the former a free ballot replaces the lottery ticket, we still have a $22 billion deficit and 36 million Californians do not realize that they could be next.