As I wrapped up my work day, I heard the helicopters hovering over my building. They were there to cover the pro-gay marriage protests in downtown Seattle. More than 200 protesters showed up to express their, quite understandable, anger with the California Supreme Court.
However, it seems the court in CA did the right thing.
First, let me say that I do favor equal marriage/civil union rights for same sex and opposite sex couples (actually, I favor civil unions for both, and getting the state out of the marriage business, but that's another post altogether).
Of course, I am not a lawyer, so there may be something escaping me here, but this was not a ruling on gay marriage. This ruling answered the question, "Can a state constitutional amendment be unconstitutional under the state constitution?" And the answer is no.
The role of the state supreme court is essentially to decide whether or not a law or amendment is allowed by the constitution. When you change the constitution, you end up with a new set of rules to apply. And that's what happened with Proposition 8.
Essentially, if you follow the proper procedure to change the state constitution, that new amendment is by virtue of its nature constitutional.
The problem here is that it was too easy to change the state constitution.
A constitution is such an important document that changes to it should require an extremely high burden, to help insulate it from political fads. When a state governs by Citizens' Initiative as California does, you are going to have all sort of problems.
The US Constitution is much harder to amend, and that's important. It takes the approval of 3/4 of the states, among other requirements, to make changes. California didn't require approval of 3/4 of its counties; it required just a popular vote of 50% + 1 vote. And that's the problem.
Some have argued, "Does that mean the state can amend the constitution to ban Mormons or ban interracial marriage?"
The answer is yes. The state can do that -- in theory.
The difference here is that those changes would conflict with the US Constitution. And the US Constitution would trump the changes to the CA state constitution.
At this point, the US Constitution is silent on the matter of gay marriage. And that's why the people of CA can legally enshrine this discriminatory policy in the highest law of the state of CA.
Some people are making arguments that the equal protection clause of the US Constitution may be used to over turn CA Proposition 8. It will be interesting to see how that argument develops.
In the mean time, it seems the best avenue available to advocates of marriage equality in CA is to get another amendment on the ballot to overturn the Proposition 8 amendment. And then someone, please, fix this amendment/initiative process.
And when you're done fixing the initiative process in CA, how about helping us fix it in WA, too?