by John M. Curtis
(310) 204-8700

Copyright June 17, 2008
ll Rights Reserved.

triking down Prop. 22 that banned gay marriage in 2000, the California Supreme Court ruled [4-3] May 16 that same-sex couples had the same constitutional right to marry as heterosexuals. Before the first marriage June 16, anti-gay marriage groups hoped to get a simple majority of California voters on Nov. 4 to ban gay marriage, invalidating the thousands of marriages currently underway. Yet majority rule doesn't always protect the rights of minorities, preventing former slaves and women from voting and enjoying other civil liberties. Sizable majorities passed in 1876 Jim Crow laws in the South discriminating against blacks, officially ending when President Lyndon B. Johnson pushed Congress to pass the 1965 Voting Rights Act. Popular majorities kept women from voting until President Woodrow Wilson urged Congress in 1920 to pass the 19th Amendment to the U.S. Constitution, guaranteeing women the right to vote.

      Popular majorities don't always get it right when it comes to civil liberties or, for that matter, changing age-old traditions like marriage, deriving legitimacy from the bible. Both the California and Massachusetts High Courts ruled that domestic partner laws violated the Separate-But-Equal principle to the Equal Protection Clause in the 14th Amendment, established in 1954 in the landmark Supreme Court ruling Brown v. Board of Education. That decision paved the way to finally desegregating public schools. When the Massachusetts High Court ruled in 2003 that “civil unions” or “domestic partner” laws violated the Separate-But-Equal clause of the 14th amendment, the High Court legalized same-sex marriages. California's initiative process requiring a simple majority of voters to overturn a carefully reasoned Supreme Court decision is fatally flawed.

      Since the California Supreme Court overturned Prop. 22 or the “Defense of Marriage Act,” it did so with the recognition that the “wisdom” of voters discriminated against gays and lesbians. Placing a new initiative to amend the State constitution on the ballot asks voters to rule against the state's High Court. If the initiative passes by a slim majority Nov. 4, the state will be right back in the same dilemma: How to protect minority rights without letting a narrow majority overrule logic and established legal precedent. Brian Brown, executive director of National Organization for Marriage, sponsored the new ballot initiative, reinstating Prop. 22, California's old “Defense of Marriage Act,” this time amending the state's constitution. Opponents and Gay-rights activists estimate it will cost between $10 million and $20 million to wage a successful November campaign.

      Amending the state constitution with a simple majority invites any crackpot with a controversial issue to exploit the initiative process. Most voters don't spend too much time thinking about same-sex marriage. Yet, when push comes to shove, they resort to values inculcated in family and religious settings, not familiar with the more complex social and legal issues. Because most heterosexuals get married in a religious setting or at least by clergy, they assume that marriage holds a legal definition. Opponents to gay marriage frequently cite history and tradition as supporting their view. History and tradition have been known to be wrong when it comes to protecting civil liberties. “This is a question of public good,” said Ciaran O'Donnell, a 51-year old computer engineer from Santa Clarita, echoing the religious argument that same-sex marriage undermines a sane society.

      Opponents to same-sex marriage don't accept the separation of church and state found in the establishment clause of the U.S. constitution. Eight years under President George W. Bush with his emphasis on “faith-based initiatives” has blurred the line between church and state. Whether one agrees with same-sex marriage, they must accept the fact religious institutions can't define civil marriage. Various faiths have their own definitions, including the one that appears in the most recent initiative: “Only a marriage between a man and a woman is valid or recognized in California.” On May 16, the state High Court ruled that excluding gays, lesbians and transgender couples violated the state and federal constitution's equal protection clauses. Passing another initiative would raise the same issue, forcing the High Court to rule that the new amendment was unconstitutional.

      California's state initiative process shows fatal flaws allowing for a simple majority to amend the state's constitution. For matters related to the state constitution, the legislature should require a super-majority or at least 60%. There's nothing new about traditionalists opposing gay marriage. There's also nothing new about the U.S. constitution preventing states from creating a “separate-but-equal” underclass, denying gays, lesbians and transgender couples the right to marry. History and tradition are no excuse to perpetuate unacceptable discrimination. “The standard is one man, one woman, one lifetime—that's it,” said Shirley Phelps-Roger with the Topeka, Kan.-based Westboro Baptist Church,” again confusing her “religious” test with the state's more restrictive definition. No initiative process should reverse the state Supreme Court's carefully considered ruling.

About the Author

John M. Curtis writes politically neutral commentary analyzing spin in national and global news. He's editor of OnlineColumnist.com and author of Dodging The Bullet and Operation Charisma.

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