On Wednesday, California's Supreme Court agreed to hear challenges to Proposition 8, which "enshrines traditional marriage in the state constitution," overruling a May 15th decision by the same court--In re Marriage Cases, 43 Cal.4th 757; 183 P.3d 384; 76 Cal. Rptr.3d 683 (2008)--discovering a right to same-sex marriage in that very constitution. Because it could be hugely entertaining, I'm looking forward to the ultimate ruling.
Briefly, the California court overturned both a validly-passed 1977 law and a voter initiative approved in 2000, enshrined in two statutes (Sections 300 and 308.5 of the California Code). As such, this decision was a clear snub to popular sovereignty, embodying the assumption that public policy is best made by appointed judges, as opposed to the people or their elected representatives in the democratic process.
In response, Californians exercised the franchise again and passed Proposition 8, which added to the state Constitution language specifying "Only marriage between a man and a woman is valid or recognized in California." My tortured sentence construction is necessitated by the technical, legalistic arguments for overturning Prop. 8, which revolve around the difference between an "amendment" and "revision" under state law. All told, the antithesis of entertaining, but interested readers can lean more here, here and here.
Returning to broader popular sovereignty questions, as Powerline's John Hinderaker says, "the petitioners are asking the California Supreme Court to usurp the constitutional power of the people and assert that the courts, not voters, hold ultimate authority." But Prop. 8 modified California's constitution. So, as National Review's Ed Whelan asks, "how can a constitutional amendment violate the constitution"? A ruling that constitutional change is the province of the court, not the people, would be the death of popular sovereignty. By calling Prop. 8 supporters "bigots"--or attacking Christians, and especially Mormons--the
So where's the humor? Simple: to re-institute the right to gay marriage, California's Supreme Court would have to hold that its creative interpretation of the state's constitution trumps subsequent language in the constitution itself. Put differently, as Hinderaker quips, "the court may be poised to declare the state's Constitution unconstitutional." That could make this case the judicial equivalent of the hoary Sunday School question "Can God create a rock so heavy that he can't lift it?"
Now that's entertainment.
Powerline's Paul Mirenghoff says if the California Supreme Court overturns Prop. 8, "the state's judges will have thumbed their noses at the popular will."
1 Montgomery Burns on popular sovereignty:
This anonymous clan of slack-jawed troglodytes has cost me the election, and yet if I were to have them killed, I would be the one to go to jail. That's democracy for you.
(hat tip to OBH for reminding me of the ancient paradox)