On Tuesday (May 26), the California Supreme Court will issue it's opinion on the legality of Prop 8, an amendment to eliminate 'gay marriage' as allowed by the same California Supreme Court just last summer. Let's look at the possibilities:
If the Court rejects the amendment as inconsistent with the California Constitution, the Right will argue that it was judicial activism overturning popular will.
If the Court upholds the amendment, the Left will argue the Court succumbed to pressure and did not uphold it's mandate.
Both will be wrong.
First, the Court reads the law and applies it. I read the Supreme Court's decision last summer and it rested almost entirely on the fact, FACT, that the California Constitution does NOT allow separate but equal institutions and when the California Legislature created exactly equal systems for gays and straights to get married, but called one Civil Unions and the other Marriage, it created a separate but equal institution. The Court rightly called them on it.
The Right howled and put an amendment on the ballot that asked for people to, by popular vote, re institute a separate but equal system. The people of California did just that. And understand, it is clear that the California Constitution and the United States Constitution clearly allow popular will to create laws that are on their face discriminatory AND allow for the creation of laws that specifically deny fundamental rights.
I expect the Court to uphold Prop 8. Californians can, and have said that certain people can not be allowed to get married based solely on the sex of their partner of choice.
The biggest mistake the Left can make on Tuesday and the days that follow is to give the Right ammunition for the argument that Gays can not be trusted to be full partners in society. And virtually ANY acts of anger will do so.
Too many people, especially on the Left think that judicial outcomes should be determined on the basis of what the outcome should be. The law is the law and judges, generally, adhere to it. There is as much judicial activism on the Right as there is on the Left.
However, too many people on the Right think that because a majority wills it, it is right. It is possible for the majority to be anti-minority and our Constitutions (state and federal) demand equality under the law for all.
Today, in every place in the United States I have the right to marry a member of the same sex. No one can stop us. However, I have no right to demand recognition of that marriage. If the State chooses to become involved in the process of recognizing that personal choice, it must do so for all couples without discrimination. The popular will of California is discrimination.
Throughout human history, slavery was practiced (it still is in a few places); just 150 years ago, our Country stopped the practice. Women did not have the right to vote until just about 100 years ago. 60 years ago, blacks and whites could not marry each other as if race had some meaningful distinction between humans. Human history is full of examples where basic rights were denied until upheaval in society forced change.
"After careful consideration" is the phrase used by 'conservatives' to demand change be withheld. Here is my final question: how long does careful consideration take? Just so I know whether I will benefit from the result, or if my grandchildren will.