Amanda Shaw of First Things, echoing legal scholars quoted in a San Francisco Gate article, doesn't think there's much merit to the argument that Prop 8 is not a valid amendment of the California Constitution. I'm not so sure.
The legal argument against Prop 8 hinges on the distinction the California Constitution makes between "amendments," which can be approved by ballot initiative, and "revisions," which require approval by two-thirds of the state legislature. The challengers say Prop 8 qualifies as a "revision" under the applicable test because it creates a "drastic and far-reaching change in the nature and operation of our governmental structure." It does so, they argue, both because it burdens a fundamental right (i.e., the right to marry) and because it targets a minority based on a "suspect classification" (i.e., sexual orientation). The challengers cite numerous cases in which courts have struck down laws on these grounds (though none, admittedly, involving an actual amendment).
The challengers also argue that Prop 8 sets a dangerous precedent. As one brief puts it:
If permitted to stand, Proposition 8 would strike directly at the foundational constitutional principle of equal protection in a manner that far transcends its impact on a particular group, by establishing that an unpopular group may be selectively stripped of fundamental rights by a simple majority of voters.
It seems to me that this is a strong argument. Under our constitutional order, courts play a vital role in safeguarding the rights of unpopular minorities. And those who don't like this fact have no one to blame except our Founders. As Hamilton explained in Federalist no. 78:
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
Don't get me wrong. I sympathize with those who, like Andrew Sullivan, argue that we'd be better off from a strategic standpoint if we fought to reverse the initiatve through the ballot box rather than through court briefs. At the same time, however, I don't think there's any shame (constitutional or otherwise) in turning to the courts for protection. This is exactly what the Founder expected us to do, and it's exactly what the challengers of Prop 8 are doing.
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