Why the Legal Challenge to Proposition 8 Matters

February 28, 2009

As I’ve discussed a bit here before, the current legal challenge to Proposition 8 (the measure eliminating homosexual marriage in California) brought by those who unsuccessfully opposed Proposition 8 is not just about homosexual marriage, it is a direct threat to the democratic ideals on which our nation is built.  If the people cannot amend their own constitution, it ceases to be “their” constitution.  The following is an excerpt from the brief filed with the court in defense of Proposition 8 (those who oppose Proposition 8 are known as the “petitioners”):

Brief in Defense of Proposition 8

For this reason, some opponents to Proposition 8 could nevertheless also oppose the legal challenge in recognition of its broad-reaching impact, and instead attempt to persuade the people to pass another constitutional amendment in the next election recognizing homosexual marriage.  At least that would be politically legitimate. 

This highlights the basic problem of judicial activism.  When judges interject themselves into policy-making, they remove issues from realm of public decision-making.  That’s why the people of each state are powerless to decide whether they will allow abortion within their borders: the United States Supreme Court hijacked the federal constitution and used it to subvert the will of the people.  And the more this happens, the more we can question whether we any longer have a democracy.

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4 Responses to “Why the Legal Challenge to Proposition 8 Matters”

  1. Mike Says:

    Just passing by.Btw, you website have great content!

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    Instead, the power company will pay YOU!


  2. I agree that the judicial system has taken way too many liberties in deciding things that should be left to the people. As far as the constitution no longer being ours if we can’t change it, I partially agree. I think that there are some parts of it that shouldn’t be changed because they are the foundation of this country and the foundation of our legal system. But on certain issues, like gay marriage I don’t have a problem with changes being made. I oppose gay marriage, but if the majority of the people want it than they should be allowed to amend it.

  3. Phil Says:

    If the people cannot amend their own constitution, it ceases to be “their” constitution.

    This is completely false.

    First, assuming that people have a right to amend their constitution, you’re assuming that people have the right to amend their constitution directly via ballot initiative.By your standards, the federal constitution is not “our” constitution since there’s no such thing as a federal ballot initiative.

    Second, the right to amend the constitution still exists even if proposition 8 is overturned. A ruiling against proposition 8 would only state that this specific ballot initiative violated the rights of a certain group of people. IE, minority rights.

    If Prop 8 were stated that black people weren’t allowed to vote, and then subsequently were overturned, the ability for voters to change the constitution via ballot initiative would still exist.

  4. thenaturallawyer Says:

    Phil:

    Thanks again for commenting…

    To my assertion that “If the people cannot amend their own constitution, it ceases to be ‘their’ constitution”, you responded that it is false, and then added, “assuming that people have a right to amend their constitution…” If the people don’t have a right to amend their constitution, is it still theirs?

    In contract law, no two people can make a contract that they cannot agree to modify later. If the people of this nation or state (through representatives or by referendum) cannot change their own agreement, it is no longer theirs. Someone else is in charge of it. And that means, as far as I am concerned, that we don’t have a democracy. (That isn’t to say we don’t have legitimate government; I’m open to the idea, if it can be demonstrated, that democracy isn’t the greatest form of government. But we shouldn’t say we have a democracy if we don’t have one, right?)

    you’re assuming that people have the right to amend their constitution directly via ballot initiative.By your standards, the federal constitution is not “our” constitution since there’s no such thing as a federal ballot initiative

    That’s not exactly what I’m saying. The people can amend their constitution through the rules they set up when agreeing to the constitution, whether through their elected representatives or a ballot initiative. But the constitution is the source of the court’s power. And if the court violates the constitution’s procedures for amending the constitution by pre-empting that procedure, the court has co-opted the source of its power, which was formerly the expressed will of the people.

    Second, the right to amend the constitution still exists even if proposition 8 is overturned. A ruiling against proposition 8 would only state that this specific ballot initiative violated the rights of a certain group of people. IE, minority rights.

    So we get to amend our constitution when the court says we can? Sounds odd, considering that the court’s power comes from the constitution, rather than vice-versa.

    What are minority rights? Where do they come from? Seems to me that every loser of an election is a minority, right? Do my minority rights as someone who didn’t vote for Obama prevent him from using my tax money to fund abortions (including forced abortions and sterilizations overseas)? Why doesn’t the court protect that minority right? Or does the court get to pick and choose which minorities get minority rights and which do not? Again, none of this sounds like democracy to me.

    If Prop 8 were stated that black people weren’t allowed to vote, and then subsequently were overturned, the ability for voters to change the constitution via ballot initiative would still exist.

    This “example” is inapposite. In the first place, such a measure would obviously contradict the federal constitution. Second, stating something like “the court can overturn the constitutional amendments you pass, but you can always try again” is little more than bone-tossing to the disenfranchised.


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