A handful of my Facebook friends were up in arms this afternoon over the California Supreme Court’s decision today to uphold the controversial Proposition 8, which amended the state’s constitution last November to decree that within the state, only a marriage between a man and a woman would be recognized as legally valid. Several of my online pals whose opinions I otherwise completely respect have taken to calling the Court’s justices terms like idiots, morons, and much harsher affronts, and even as a proud gay man who has grown incredibly weary with this two steps forward, five steps back dance toward mere legal equality, the juvenile name-calling just doesn’t sit right with me.

What began its life as an incredibly simple blog post — wherein I was going to admonish my pals for leaping too quickly without truly comprehending the judgment the Court handed down today — has grown remarkably complex inside my own mind, as I’ve tried to justify for myself, by boning up on the intricate particulars of the California state constitution and its Equal Protection Clause (which this same exact Court employed last year in temporarily making same-sex marriage legal), how six of seven people ended up deciding as they did this afternoon.

No matter how you feel about today’s decision, or about the ballot proposition that incited it — and it’s quite fair to say that the emotions run impossibly deep on either side of the issue — I think it’s crucial to remember that it was not the Court’s charge to pass a yea or nay judgment on gay couples and their right (or denied lack thereof) to marry; their job was simply to determine the legality of last fall’s proposition, which passed in the November general election by a comparably thin margin of around 600,000 votes (out of just under 14 million cast). Boiled down to its essence — at least as I understand its essence to be — the case is basically this: amending the California state constitution (which is to say, adding text that clarifies a previous piece of the same document) requires nothing more than a simple majority of “yes” votes on a statewide ballot; on the other hand, revising the California state constitution (which is to say — again, at least as I understand it, and quite frankly, the more I’ve read on this issue this evening, the less certain about anything I have become — eradicating wholesale a previous piece of the same document) first requires a two-thirds majority vote from the state legislature. (If I have any of this wrong, please take a moment to correct me.) The argument of those who brought this case to the state Supreme Court was that Proposition 8, which was presented as a constitutional amendment clearly defining how a marriage could and would be legally recognized, in actual fact amounted to a constitutional revision, since it seems to fly directly in the face of the document’s Equal Protection Clause, a chunk of text which the Court itself had previously cited in order to justify its original ruling last summer that applicants for marriage could not be discriminated against solely based on the sex of either party.

To my eye — and it’s as untrained as it gets in such sticky matters, believe it — the crux of today’s ruling is this: because Prop 8 in no way eradicated any previous line(s) of text already present in the state’s constitution — which is to say, prior to Prop 8’s inclusion in the document, there was nothing that clearly outlined in the text what a marriage is or isn’t, completely irrespective of what the Equal Protection Clause does or does not say — the Court, regardless of its previous ruling on same-sex marriage, had no choice but to recognize the amendment as exactly such; and furthermore, because the amendment passed last November by a simple majority of the electorate — which is to say, it doesn’t really matter that it “only” won by 600,000 votes; it could have won by three votes and the amendment would have passed: a simple majority is a simple majority — the Court had no choice but to uphold not only the amendment, but also the citizens’ right to amend, in any way they see (and vote) fit, the document that houses their rule of law.

In a republic which was very literally constructed to be of the people, by the people, for the people, that very right — the ability to challenge and attempt at a proper time to change the laws of a continually evolving society and populace — is the most important right we hold. And regardless of which percentile, high or low, in which your singular vote on any given issue might land, it’s a pretty marvelous fact (and a goddamned miraculous feat) that, some two-hundred-and-change years after this nation was founded (and, at that, founded on some pretty radical ideas — and ideals — of what freedom and democracy could truly be if and when they are accurately intertwined), the people’s voice can continue to be heard, and the people’s will can continue to be enforced. Those twin ideas must not be taken lightly; and more importantly, more crucially, they must not be taken away lightly.

The California Supreme Court today recognized and invoked its responsibility to vehemently protect our most sacred right as Americans: the right to decide for ourselves, in a civilized manner, what kind of society we wish to create and maintain, and what kind of laws we will and will not support toward that end, and what kind of language will or will not amend the document which lays in stone those laws and which thereby stands as a living, breathing testimony to how we do things inside these borders. As an artist every last fucking syllable of whose is fiercely guarded by a powerful parcel of that very language, I can only attest that, even though I thoroughly abhor the amendment that the people of California voted by a painfully thin margin to support, I celebrate their right to have done so; and when the amendment is eventually repealed (which it certainly will be: humanity carries with it an unstoppable forward evolution, based and sustained on a painful progress that will never be permanently derailed or denied), it cannot — it must not — be the courts of this country, but rather, the citizens, who flip that switch. It was the people who approved it, so it must be the people who abandon it. For bravely recognizing that and that alone, the state justices in the eye of today’s raging storm deserve not to be called idiots or morons, but heroes.

“Laws are like sausages: it’s better not to see them being made.”

— 19th century German statesman Otto Bismarck

2 responses to “he who loves sausage and he who believes in justice”

  1. the buzz from JP:

    I was just now searching around about this when I discovered your blog post. I’m just dropping by to say that I definitely enjoyed reading this post, it’s really well written. Are you considering posting more about this? It appears like there’s more depth here for future posts.

  2. the buzz from A.:

    Brandon, to use an American Idol-ism, I give you “props” for delving into the legal battle over same-sex marriage (and for finding the Otto von Bismark quote – I have never quite thought of the legislative process that way). While I agree with you that the California Supreme Court made a reasonable interpretation that Proposition 8 was indeed a Constitutional amendment rather than an a revision, I do believe there could have been other reasonable interpretations as well.

    However, I disagree with your view that Proposition 8 should be rescinded by the people of California rather than the courts. While in the ideal world, indeed it would be right if the voters were to realize their mistake (or, rather, bigotry) and repeal Proposition 8, we live in the real world. And, because we live in the real world, we have a judicial system one of whose most important – even sacred – duties is to protect the rights of a minority, especially in face of majority opposition. To realize this one needs to look no farther than Brown v. Board and Loving v. Virginia as well as the Massachusetts, California , and Iowa same-sex marriage cases. Consequently, I do believe that the federal courts can and should overturn this decision to protect minority rights (using the equal protection clause of the US Constitution).

    Of course, ultimately, a society is governed by the people for the people, and so voters should be able to overturn judicial decisions, enact laws, or amend Constitutions but not as easily as they can in California, where, as you rightfully point out, a mere three-vote majority is sufficient. The founding fathers got it right in the US Constitution, making amendments hard but not impossible by requiring approval by two-thirds majorities of both houses of Congress and three-fourths of the states. At the state level, Massachusetts and Iowa Constitutions do it right, requiring approval by the legislature twice and a referendum.

    While I am somewhat saddened by yesterday’s decision, I am not disappointed per se, for the system worked in accordance with its design. My hopes are that this ruling spurs more activism (apparently, Equality California is already debating whether to put forth a referendum in 2010 or 2012 and there is already a case filed in federal court) and, more importantly, forces voters to reassess the impact of their vote, their view on gay rights, and the nature of the California referendum process. Let’s hope that a year and a half (or three and a half) from now, California will regain its place at the forefront of the Union for protecting GLBT rights.