Setting Aside The Rhetoric: A Lesson in Constitutional Law

Disclaimer: Okay. I'm not a constitutional lawyer. I'm not even a lawyer. Hopefully this will work for me and not against me.

WHAT MATTERS

I'm actually learning so much through this campaign. It's the first time I've been an activist (if you call starting a blog and bugging all your friends activism), and I've learned that I like it. It feels good to stand for something. I've learned that you can make time for what really matters to you because if you'd asked me last week if I had the time to do this, I would have laughed and then gone back to running my business. And I've learned that what we learn in high school really does matter.

I was educated in good schools, so I am sure somewhere along the way I MUST have learned what it means to be part of a democratic system and live according to a constitutional law. Maybe 9th grade? Or 10th? But I guess I wasn't paying attention, because I sure don't remember it. The good news is that what I should have learned all those years ago actually does matter 25 years later (who would have thunk it?)! . And I'd go as far as to say, if you boil it down and set the rhetoric aside, constitutional law may be the ONLY thing that matters in the Prop 8 debate.

I have devoted many of my waking (and what should be my non-waking) hours to reading and studying the issue. I truly want to understand both sides. And I have concluded that both sides are pretty much fighting for the same thing: their rights. The supporters to preserve religious rights and the detractors to preserve civil rights. If you concede both sides have some legitimate arguments, what it really comes down to is this: interpretation of our state constitution. Since I didn't remember learning it in high school, I had to refresh my memory on just exactly what that means.

THE CONSTITUTION AND THE INITIATIVE PROCESS

The governing law in Calfornia is a constitution, interpreted by the California Supreme Court, whose members are appointed by the Governor, and ratified at the next general election. (For those who claim the judges are a bunch of liberals, I would ask you to pay mind to the facts: 6 of the 7 were appointed by Republican Governors. And we, the voters, approved each appointment.)

The constitution can be changed by initiatives passed by voters. Initiatives can be proposed by the governor, legislature, or by popular petition, giving California one of the most flexible legal systems in the world (I repeat...in the world!!) This means, in effect, we can be "citizen legislators". Only 24 states and Washington DC have an initiative provision in their constitution.

CHECKS AND BALANCES

As you know, our form of government is made up of an executive, legislative and judicial branch (ah yes, this is starting to ring a bell). In a state, the executive branch is the governor, the legislative branch is the state assembly and senate, and, at the top of the judicial branch is our state supreme court. It's set up this way to provide a system of checks and balances so that one branch doesn't have too much power. When the legislative branch passes a law, whatever they put forward must be able to survive judicial review. So, when as "citizen legislators" we pass an amendment, it too must be able to survive judicial review to ensure that it's constitutional because THIS IS HOW OUR SYSTEM WORKS!

INTERPRETING THE CONSTITUTION

It is the judicial branch, ultimately, our state supreme court, that interprets the constitution. When they interpret the constitution, they consider precedents. They don't consider their own personally held beliefs. In the same-sex marriage ruling, the precedents cited were two cases on interracial marriage: Perez v. Sharp (1948) and Loving v. Virginia (1967). Both struck down laws against interracial marriage on the basis that marriage is a civil right. The part of the CA constitution that applies to this ruling is Section 7, which reads in part:

(a) A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws ...
(b) A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens.

Ruben Navarette, a columnist for the San Diego Union Tribune, wrote: Opponents of gay marriage make a fuss over the fact that a handful of judges overrode the wishes of millions of voters. You don't say? These people are all too eager to use ballot initiatives to play citizen legislators, as they did eight years ago. But when real legislators pass a law, whatever they come up with must be able to survive judicial review. The same goes for a voter-approved initiative. The opponents of gay marriage want all the power that comes from making laws, but none of the responsibility of making sure the laws they pass are constitutional.

THE BOTTOM LINE

Reacquainting myself with the democratic process and the rule of constitutional law, combined with reading section 7 of the CA state constitution, leaves no doubt in my mind that Prop 8 is unconstitutional. This is where I think the argument is so cut and dry. No matter what you think of same-sex marriage, I just don't see how anyone could disagree with this. This is our democratic system at work. If people don't like it, they have a few options: they can try to get different justices appointed to the State Supreme Court; they can find some unsettled territory and set up a theocracy; they can move to another country that has a system they think is better. But trying to legislate discrimination is not an option. And I hope that the groups who spent millions upon millions of dollars trying to do so will recognize this and find real problems that they can solve with all that money. We all know there are plenty.

Just like interracial marriage did not lead to the demise of our society, neither will legal recognition of same-sex marriage. Recent studies have shown that the generation growing up now is more color blind and gender blind and sexual orientation blind than ever before. These things, quite simply, just don't matter to them. If we keep dragging out this fight over legalization of same-sex marriage, it may well be this generation that ends up ultimately settling the issue.

I just hope they are paying attention in school.