Judicial Activism: Same Sex Marriage And The Aftermath Of Proposition 8
LEGALIZING PREJUDICE BY A MAJORITY VOTE
Ronald Steiner, Ph.D., J.D. raises some very interesting issue regarding direct democracy in the context of constitutional amendment (or is it revision?). It seems interesting that a simple majority vote is enough to cast aside the notions for fairness and equality for the state of California—the state that has a tendency to set a trend for the rest of the nation. Never mind that fact that many voters found Proposition 8 to be confusing. Nevermind that huge lobbies spent millions of dollars to try to convince the country that gay marriage would somehow harm children. The real question is, should a bare majority of voters have unrestrained power to make such an important decision for their state?
This is not simply a vote to provide funding to improve mass transit or improve the roads, we are talking about a systematic exclusion of a large percentage of our population. Perhaps it can be argued that the people have spoken and we as a state must live with that decision, but have the people spoken? And should “we” really have that final word? Steiner listed the nations that allow for such a process, I don’t know about every American, but and with all do respect to Uganda, Colombia, Georgia and the Philippines (just to name a few), it is meaningful that only one advanced industrial democracy provides for constitutional amendment by citizen initiative. It is meaningful that out federal government does not provide for such a process. It is meaningful that man states in our nation do not provide for such a process. Regardless of how an individual feels about the subject matter of Prop. 8, this distinction cannot be lost on our population.
So, is the “alteration” of the definition of marriage an amendment or a revision? Apparently the Supreme Court of California has not the wisdom; a lowly law student certainly is not qualified. A quick search makes it pretty apparent, however, that the distinction can be interpreted as needed to either restrain or gain access to amendment by citizen initiative. As a reasonably fair-minded individual, it seems that there should be some sort of check in place to prevent the majority from systematically discriminating against the minority through a revision or an amendment.
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