Courts must decide on gay marriage - Getting it wrong on Prop. 8

I love that California is the hippest, most progressive state in the country, but I hate that our Constitution can be amended by a majority of voters. In the Golden State, the people have the power to recall our governor regardless of job performance, to initiate government programs without any thought as to how they'll be paid for, and our Supreme Court ruled we can restrict the rights of groups of people we don't like. That's how $2 million from Rep. Darryl Issa put Arnold Schwarzenegger in office, how the state government ran up an $26 billion deficit, and how a loose affiliation of liars conspired to legalize discrimination by passing Prop. 8.

I like participating directly in our democracy and knowing my vote counts. As a man of the people, I know that not everyone can do the same because with the pressure of work and family, sometimes there aren't enough hours in the day. I don't like that my vote counts as much as the vote of someone who doesn't quite get the issues at hand and I was counting on our Supreme Court to beat back the bigots and re-affirm the fundamental right to marry for all couples. I'm sorry to say that through some ridiculously circular logic, they got it wrong.

About a year ago, the California Supreme Court struck down a law stating "only marriage between a man and a woman is valid or recognized in California" on the grounds that it was discriminatory. This law started in 2000 as a ballot initiative called Prop. 22 (passed with a margin of about 1.6 million votes) and is known as the California Defense of Marriage Act. In his majority opinion, Chief Justice Ronald George wrote, "An individual's sexual orientation — like a person's race or gender — does not constitute a legitimate basis upon which to deny or withhold legal rights." Essentially, the court ruled that the D.O.M.A. (made up of only 14 words) was unconstitutional in California and rejected it. With that, Prop. 8 was born.

The most important thing to remember about Proposition 8 is that its wording is identical to the D.O.M.A. It says, "only marriage between a man and a woman is valid or recognized in California." The key difference is that Prop. 8 sought to change the state Constitution, not state law. By allowing the bigots behind this effort to exploit the California quirk that allows the ballot initiative to be a check on the three branches of government, the state Supreme Court basically legalized discrimination over the objection of the Legislature, the chief executive, and the court's prior ruling.

The effect of this decision is that the court has reversed itself on the meaning of 14 words in the span of 12 months. Last year, we were told there is a fundamental right to marry that must extend to gay couples since legal rights cannot be denied to a person because of sexual orientation. This year, we're told that the voters of California can deny the same rights to those same people on the same basis if they want to. Obviously, this makes no sense.

The sticking point is the question of "amending" versus "revising" our Constitution. An amendment can be placed on the ballot with either a two-thirds vote in the Legislature or as few as about 700,000 signatures. A revision needs two-thirds of the Legislature and a majority of voters because it's a "substantial change to the entire Constitution, rather than … a less extensive change in one or more of its provisions." The premise is clear: if the change to the Constitution is far-reaching in scope, then it needs overwhelming approval. Prop. 8, now the law of the land for over 35 million people, was passed with a margin of about 600,000 votes. The fact that we're only talking about 14 words (that the ruling refers to as a "single, simple section to the Constitution") seems to have made the four justices in the majority believe this change doesn't amount to much. They say, "The act of limiting access to the designation of marriage to opposite-sex couples does not have a substantial or, indeed, even a minimal effect on the government plan or framework of California that existed prior to the amendment." That may be true, but same-sex couples in California who could file their federal taxes jointly, collect each others' Social Security and veteran's benefits, or sponsor one another to immigrate before Nov. 4 no longer can.

The court upholding Prop. 8 means the issue has gone from discrimination (the illegal denial of rights based on sexual orientation) to designation (whether or not a same-sex partnership can be called "marriage") over the course of a year. But the real matter at hand — the key word that Prop. 22 and Prop. 8 have in common — is "recognition." By no longer recognizing gay partnerships as marriage, the court has created a second and third class of Californians: gay/married before Prop. 8 and gay/no right to marry.

Not exactly hip or progressive if you ask me.