The People's Right! to Self-Governance

Debra J. Saunders
Tuesday, May 26, 2009

Within a decade, same-sex marriage probably will be legal in California. Thanks to the California Supreme Court 6-1 ruling on Tuesday to uphold Proposition 8, the law will be changed in the proper way -- not by judicial fiat, but with California voters determining whether, when and how best to broaden the state's marriage laws.

In a 4-3 decision last May, the court had ruled that California's ban on same-sex marriage was unconstitutional, as the state's civil-union laws conferred "significantly unequal treatment" for same-sex couples by denying them the right to call themselves married. In November, voters struck back by passing, with 52 percent of the vote, Proposition 8, which changed the state Constitution to define marriage as between a man and a woman.

Tuesday, the state Supreme Court did what it had to do by recognizing the people's new constitutional mandate.

As Chief Justice Ronald George wrote in the majority opinion, the issue before the court was the "right of the people" to change the state Constitution -- not "to determine whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution." The court also upheld the 18,000 same-sex marriages performed in California between May and November, as Proposition 8 was not retroactive.

Gay-rights advocates have denounced the 6-1 ruling as stripping away their equal rights. Nonsense. California same-sex marriage never was equal because federal law failed to recognize same-sex unions. Besides, as George noted, under Proposition 8 "same-sex couples continue to enjoy the same substantive core benefits afforded by those state constitutional rights as those enjoyed by opposite-sex couples."

Some activists may choose to berate Proposition 8 supporters as haters and bigots, but they do so at the cost of coming across as haters themselves.

Besides, the legal arguments against Proposition 8 were not so high-minded. Opponents argued that Proposition 8 constituted a "revision" of the state Constitution -- and hence required a two-thirds vote of the Legislature or constitutional convention to make it onto the ballot. In the name of one group's civil rights, Proposition 8 opponents were happy to strip Californians of their right to control their state Constitution.

On hearing of the court's decision, Shannon Minter, legal director of the National Center for Lesbian Rights, announced, "But our path ahead is now clear. We will go back to the ballot box and we will win."

He certainly has the right to take his group's case before voters. But if gay activists want the support of the majority of Californians, they should exhibit some respect and tolerance toward those with whom they disagree.

Since 2004, when San Francisco Mayor Gavin Newsom opened up City Hall to same-sex marriages in violation of state law, same-sex marriage supporters have demonstrated that if they didn't like a law, they could break it. Then, when the California Supreme Court ruled in their favor in 2008, Newsom famously crowed, "This door's wide open now. It's going to happen -- whether you like it or not."

After Proposition 8 passed, opponents targeted citizen donors to the "yes" campaign for harassment. Their threats of retaliation and boycotts -- which forced a handful of Proposition 8 donors to resign from their private-sector jobs -- fed the suspicion that if same-sex marriage is legalized, any dissent against the practice would not be tolerated.

And their selectivity has been breathtaking. After all, Barack Obama ran for president in support of civil unions, not same-sex marriage. Yet as activists picked on relatively small Proposition 8 donors who did not have the clout to fight back, somehow Obama can keep his job.