Staff writers Nate Munger and John Olson debate whether or not the recent California Supreme Court decision to uphold Proposition 8 (Prop. 8), the amendment to the state constitution defining marriage as between a man and a woman, was correct. The court ruled that though the term marriage should be reserved for heterosexual unions, same-sex unions should receive all of the same rights as heterosexual unions.

PRO, by Nate Munger:

The most common complaint against the recent California State Supreme court decision to uphold Prop. 8 is that Prop. 8 is an unjust proposition. While I entirely agree, the court upheld the proposition primarily because it held that constitutional amendments are not subject to judicial review. I agree with the court’s decision because the role of the court is to interpret, not rewrite, the Constitution. To give the court power over amendments would destroy the system of checks and balances upon which our government relies. There is no court precedent which indicates that the courts can overrule constitutional amendments, even if such amendments conflict with previous court decisions.

“Petitioners… cannot point to any authority supporting their claim that… a constitutional amendment… cannot diminish in any respect the content of a state constitutional right as that right has been interpreted in a judicial decision,” Chief Justice Roland George wrote in the majority opinion.

The only way the court could have had the authority to overturn the decision was to rule that Prop. 8 constituted a constitutional revision, rather than a constitutional amendment, which would render its passage null and void. While constitutional amendments only require a two-thirds vote in the legislature and a majority of the popular vote to pass, proposals deemed constitutional revisions require a constitutional convention to become law, according to George. However, constitutional revisions are proposals which alter the basic structure of the constitution, unlike amendments which encompass other changes to the constitution.

“The category of constitutional revision referred to the kind of wholesale or fundamental alteration of the constitutional structure that appropriately could be undertaken only by a constitutional convention,” George wrote.

The court was correct in holding that Prop. 8 was a constitutional amendment because Prop. 8 only reserved the term marriage for heterosexual couples while keeping all other “marriage” rights intact. As no part of the California Constitution guarantees a right to the term “marriage,” Prop. 8 was not a “fundamental alteration of the constitutional structure.”

Another argument advanced against the recent court decision is that allowing a simple majority to pass constitutional amendments which may infringe upon the rights of a minority group is problematic, and that upholding Prop. 8 opens the door an oppressive majority with unchecked power. However, the court upheld Prop. 8 because it held that there was no constitutional right to the term “marriage.” However, any further amendments which encroached upon rights more explicitly enumerated in the Constitution, such as voting rights, free speech rights, or domestic partnership rights, would likely be considered “wholesale and fundamental alterations of the constitutional structure” and be declared revisions requiring approval from a constitutional convention. Also, the California Constitution gives the power to amend the constitution to the legislative branch and the public, not the judicial branch.

“In a sense, petitioners’… complaint is that it is just too easy to amend the California Constitution,” George wrote. “But it is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it.”

I believe that the power of judicial review exists so that the courts can interpret the constitution; to allow the courts to control the way in which an amendment is ratified would destroy the system of checks and balances on which our government relies.

The dispute in this case centered not on whether or not Prop 8 is a good and just amendment, but whether or not the California Supreme Court had the authority to review it. Unfortunately, their hands were tied.

CON, by John Olson:

I believe that the Supreme Court’s decision to uphold Prop. 8 is wrong and strips same sex couples of their constitutional rights, giving the popular majority undue power over the Constitution.

“We held that denying same-sex couples the right to marry denies them equal protection of the law,” said Carlos J. Moreno of the California Supreme Court in reference to last spring’s decision to uphold gay marriage. “Proposition 8 partially abrogated that decision by amending the California Constitution to deny same-sex couples fully equal treatment.”
The courts decision to uphold Prop. 8 has faults on two fronts that I will address. First, the decision is a mistake because it destroys the progress of the gay rights movement by considering the proposition an “amendment” as opposed to a “revision”. Second, the decision places power in the hands of the simple majority to vastly alter the state’s constitution via propositions which could result in oppressive restrictions, and an unjust constitution.

The difference between an amendment and a revision is that a revision to the Constitution must be initiated by the legislature either by a two-thirds vote, or by proposing a revision of the Constitution to be submitted to the voters for approval or disapproval by simple majority. A constitutional amendment can be accomplished by a majority of the electorate after the signatures of 8 percent of the number of persons who voted in the last gubernatorial election have qualified it for the ballot, according to Moreno. Had the court ruled that the proposition had been a revision it would have had the authority to overrule Prop. 8.

The proposition should have been viewed as a revision as opposed to an amendment because Prop. 8 “represents such a drastic and far-reaching change in the nature and operation of our governmental structure,” said Moreno.

The proposition represents that drastic change to the governmental structure because it allows voters to control what happens to minorities’ rights. The court’s decision to uphold Prop. 8 justifies the majority could propose a proposition that would eliminate the obligation of the court to protect the rights of a minority group despite the desired changes proposed by a majority. That shift in governmental structure should only be allowed by a constitutional revision, not an amendment.

The second reason that the court’s decision is unjust is that it hands the simple majority the authority to revise the state’s constitution via proposition.

Though this has been upheld time and time again, I think that the decision to change the state’s constitution should not be able to be altered, especially in respect to minority rights, by a 51 percent vote. If majorities are given the power to alter the rights and opportunities of minorities then the majority can shape the constitution to be self-serving. Unlike politicians, who have an incentive to compromise with one another, the majority of the people would have no reason to respect the minority. The results could be devastating for civil rights movements.

Furthermore, even if the court lets the proposition stand, it should view it under special circumstances to protect minorities. Same sex couples deserve the protection of the law, regardless of what others may want.

Until the rights of same sex couples are protected not only under state law, but also under federal law, the courts will not have done their job to protect the rights of minorities. Until gays and lesbians are treated equally, this country’s declaration of freedom and justice will be a lie.