It is Decision Day here in California - this morning we will learn whether our state Supreme Court will uphold Prop 8 that amended the state constitution to define marriage as only being between a man and a woman.
The ramifications will be significant, regardless of how the Court rules. What really is the legal issue here is not "equality" for homosexuals, but whether California's legislative process will survive. Unlike other states where a person needs to get a state legislator to sponsor a bill if a new law is wanted, California has the proposition system - get a cause, get enough signatures, and it becomes a ballot issue, to be voted into law by the people.
The argument is that the proposition system is improper for constitutional amendments. A constitution, one would argue, against which enacted laws are held, warrants a sort of "super majority" vote by the legislation to be amended. They argued this is not an amendment but an illegal revision.
However, in 1972, Californians - upset at then Chief Justice Rose Byrd and a decision that called the death penalty "cruel and unusual punishment" (and the reason why Charles Manson is incarcerated for life, having the good fortune of sitting on Death Row when that ruling came down), used the proposition system to amend the constitution to reinstate the death penalty. The right at issue there is life, and was noted during the Prop 8 arguments.
But Associate Justices Joyce Kennard, Marvin Baxter and Ming Chin noted that voters successfully overturned a 1972 Supreme Court ruling that struck down the death penalty as cruel and unusual punishment. When the measure was challenged, the court upheld it as a properly enacted amendment.
"It would appear to me that life is, at least in my view, a fundamental right," Kennard said. "The court said that particularinitiative restoring the death penalty in California was not a revision."
What does this mean? If Prop 8 is overturned, it may well portend the end of Californian's proposition system, at least to amend the state constitution, which would make a lot of people unhappy - the "will of the people" gets thwarted and in unsteady economic times, that can aggravate the unhappiness. If Prop 8 is upheld, expect more anger and a future proposition measure to amend the constitution to allow gay marriages, and a move to dismantle or weaken the proposition system.
By the way, everyone is asking whether the gay marriages performed before Prop 8 was voted in are legal. I think that even if the Court upholds Prop 8, they will rule those marriages are. But if Prop 8 is overturned for the legal reasons discussed above, how many appeals on death penalty cases will be filed, arguing that the constitutional amendment that reinstated it is . . . unconstitutional.
Oh, and rioting is in the forecast for tonight. Mormons and Catholics - stay safe.