California Supreme Court Takes a Pass on Proposition 8

Incredibly, the California Supreme Court, the court that ruled in a 4-3 June 2008 decision that there was no reason why the state could not grant marriage licenses to couples of the same sex, ruled – again in a 4-3 decision – that a constitutional amendment to ban same sex marriage in California should stand.

The court, it seems, feels that it has no authority to overturn the will of the people of California.

So what was OK before is not OK anymore.

The only good news in all of this is that the 18,000 same sex marriages that took place during that window of time when they were allowed were not nullified by this decision.

But back to that spineless court.

Sometimes the people are wrong. Take the majority that sent George W. Bush back to the White House in 2004. Sometimes the people are wrong and act badly, in this case voting for Proposition 8, an initiative concocted by the Mormon Church whose purpose is to interfere in the personal lives of their neighbors by forbidding state-sanctioned marriage between people of the same sex, and all of the benefits that you derive as a result.

Bald-faced discrimination by the initiative process.

You know, this is not the first time that the majority of California voters approved a discriminatory initiative.

Way back in 1963, an African-American California state legislator introduced the Rumford Fair Housing Act, a bill that would set guidelines for how and why a renter or buyer of real property could be turned down.

California property owners, it seems, had a habit of discriminating because of race when faced with an offer to buy or rent property. This bill sought to remedy that situation.

And like the Mormon Church, the California Real Estate Association was horrified, horrified I tell you, that the state was intruding in their business decisions.

So they introduced Proposition 14 in the 1964 general election.

A constitutional amendment that overturned much of what the Rumsford Fair Housing Act provided.

And it passed by a 65% majority vote.

Here is what Prop. 14 said:

“Neither the State nor any subdivision or agency thereof shall deny, limit or abridge, directly or indirectly, the right of any person, who is willing or desires to sell, lease or rent any part or all of his real property, to decline to sell, lease or rent such property to such person or persons as he, in his absolute discretion, chooses.”

Nice, huh?

A lot of people are of the opinion that the ill will that this constitutional amendment spawned among the African-American community was part of the back story that resulted in the Watts Riots that occurred in the summer of the following year.

So this is all sounding a little familiar isn’t it?

All except for two things. Instead of rioting this year, the gay community responded by writing and performing in a musical called “Proposition 8 – The Musical.”

And the other thing, in 1967 the US Supreme Court overturned Proposition 14, labeling it unconstitutional. Unconstitutional because it violated the equal protection clause of the 14^th Amendment.

Back then, the US Supreme Court was not squeamish at all about overturning the votes of 65% of presidential year California voters.

Because the voters acted poorly.

So the ultimate answer, it seems, is a process that was just begun this past week by an unlikely pair of lawyers: Ted Olsen and David Boies, the two lawyers that faced off in the US Supreme Court in 2000 in the now infamous case Bush vs. Gore.

Their intent? They have filed suit this past week challenging the constitutionality of Proposition 8 on the grounds that it violates the equal protection clause of the 14^th Amendment.

Because, you see, you can discriminate all you want in life – it has happened time and time again with impunity. But when you pass a law that allows you to discriminate against someone – like Proposition 14 in 1964 - that’s unconstitutional.