Tuesday, May 26, 2009

Today's the day

The California Supreme Court announced last week that they will release their decision on Prop 8 today. Most who observed the oral arguments came away with the impression that the court will uphold Prop 8. Tucker Carlson and Greta Van Susteran's fill-in spoke last night as if the only just and principled thing for the court to do would be to affirm the will of the majority.

Well, with all due respect to the bow-tied one (which isn't all that much), Carlson and those who agree with him could not be more wrong. And they really need to brush up on their Federalist Papers. The majority cannot strip constitutional rights from a minority by a simple majority vote. James Madison warned us against giving in to tyranny of the majority.

Could a majority of Kansans vote to outlaw the practice of Judaism in our state? Of course not. Nor could we by majority vote pass a law denying Republicans the right to protest. These absurd-sounding laws are clearly unconstitutional. Even if 60% of Kansans voted for these laws, they would never survive legal challenge under the Kansas or US Constitutions and rightly so.

I submit that Prop 8 is no different from those hypothetical laws. Prop 8 seeks to strip constitutional rights from a minority. As such, it should itself be declared unconstitutional. Prop 8 was a response to the California Supreme Court's finding that gays did have a right to marry under that state's constitution. So if Prop 8 is affirmed, the California court will allow 52% of the state's population to strip a constitutional right from a politically unpopular minority. That is the far more alarming possibility.

Constitutional rights must not be subjected to popularity contests.
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2 comments:

k said...

Ugh...I just don't get it. I really hope that some day Californians will be embarrassed about this. I know I feel embarrassed for them...
I'm with lu- there are many things that I can see the other side of without agreeing with them. With this issue, I have a really hard time comprehending how treating people as second class citizens can possibly be right.

S said...

Yep. And the decision itself is so weird. They acknowledged that a popular vote couldn't affect substantive rights, but allowed the marriage wording to stand as a semantic thing.

I will never understand why people have such strong and negative reactions to homosexuality. Makes no sense to me whatsoever.

 
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