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More on Prop 8: Quixotic Fundamental Rights

March 5th, 2009 No comments

Breaking my vow to blog only once a day, I can’t resist adding a few comments to my earlier, live-blogging post.First, calling something a “fundamental right” is essentially meaningless if it can be taken away by simple majority rule. Justice George’s opinion for the majority in last May’s In re Marriage Cases ruling contained lofty pronouncements about the right of all people to marry someone of their choosing, and about the clear message in the legislative approach of granting the rights of marriage while withholding the label. If I’m right in my prediction about Justice George’s vote based on his questioning at oral argument, he’s willing to let the people abrogate these rights by a simple majority vote, blaming it on the constitutional initiative process.

(“Riddle me this, Batman: When is a fundamental right not worth a sou?” “When it’s established by the California Supreme Court.”)

The second point is closely related: The process for amending the constitution in California, and indeed the entire direct democracy idea, is just plain loony. I know I’ll regret saying this when Prop 8 is reversed, as I predict will happen within a few years, at most. But even when that happens, one doesn’t need to restrict oneself to Prop 8 to find myriad reasons for questioning this whole process. I looked at the raft of propositions on last November’s ballot and was struck by their range and complexity. Are the voters really equipped to vote a simple “up or down” on a complex statute? Legislators, fed by committees and countless experts, are barely competent to engage in this high degree of difficulty  exercise. Leave the amateurs out of it, please.

Tomorrow I will have final thoughts on today’s arguments and where the movement goes, in California and elsewhere, from here. And although I  typically have no idea what I’m going to blog about in the future, I can state with assurance that next week’s blogs will be rife with withering analysis and condemnation of (some of the) anti-marriage-equality forces, whose sanctimonious dissembling I can no longer bear. First up will be Maggie Gallagher, whom no reasonably intelligent person should take seriously. (As a start, go to Andrew Sullivan‘s blog where he summarizes some of the reaction to today’s Prop 8 arguments, including hers.)