(Originally posted on the Huffington Post.)
For their support of Proposition 8, the Mormon Church and the Knights of Columbus have been subjected to harsh criticism. They insist the criticism is unfair. All they did, they say, was exercise their democratic right to cast their vote on whether same-sex couples should be able to marry.
That response suggests the Mormons and the Knights don't grasp what Proposition 8 did. They speak as though Prop 8 were a simple vote on whether to support or oppose marriage for same-sex couples. But Proposition 8 didn't pass a law about marriage or repeal one; it changed the state constitution to say that a right available to everyone else would not be available to same-sex couples.
The difference between passing a law and changing the constitution is no technicality. If majority rule is the first premise of the American system, the second premise is that the rights of a minority can't be taken away by majority rule.
It was to make sure that minority rights didn't depend on the forbearance of the majority that we added a Bill of Rights to the federal constitution. And it was to make sure that the promises contained in the Bill of Rights were real that we early accepted the idea that while it was for Congress to decide what laws to pass, it would be for the Courts to decide if those laws were fair and equal.
On the unusual occasions when the Courts strike down laws, they typically save us from the kind of excess that makes us all ashamed later -- laws that put people in jail for opposing a war or laws that segregated schools. Sometimes the Courts don't save us from our excesses and we later wish they had--think of laws that forced Japanese Americans into internment camps.
The California Constitution uses the same institutional balancing that the U.S. Constitution does: the legislature decides what laws to pass and the Courts have the last word on whether they are fair and equal. Proposition 8 threw out that balance. Its purpose was to set aside a Court decision enforcing the constitution and to have the views of a majority trump the rights of a minority instead.
Under the U.S. Constitution, a Court decision can be changed by changing the constitution. But that can't be done by a simple majority vote. Two-thirds of each house of Congress has to agree, and then three-quarters of the state legislatures have to consent. Overthrowing a Court decision on basic rights is difficult. But it has to be if that second premise of our system--that the rights of a minority can't be taken away by a majority vote--is to mean much.
The California Constitution says that while minor changes can be made by a simple majority, major change — a revision — must be approved by two-thirds of each house of the legislature and then by the voters. The lawsuit attacking Proposition 8 says that taking away the basic rights of a minority is such a drastic step, it has to be a major change--a revision.
Those who drafted Proposition 8 complain that it would be difficult to get two-thirds of the legislature to agree. But it is supposed to be difficult. Otherwise, the promise of a right would be only as good as the forbearance of the majority, exactly what the framers of the American constitutional system worked to avoid.
Perhaps the Mormons and the Knights would understand why Proposition 8 was deeply wrong by considering another initiative. If an initiative were proposed to give the expansive protection the California Constitution gives freedom of religion — greater than the federal constitution — to all faiths except Mormonism and Catholicism, would the Mormons and the Knights see this as just a fair part of ordinary political discourse? This is nothing more than what Proposition 8 did.
There have been times in our history when large majorities would gladly have taken rights away from Mormons and Catholics. There still may be places with majorities ready to do that. I hope that if anyone ever proposes such a thing, the Courts will rise to the task of protecting minority rights and strike it down. Just as I hope they will rise to the job now, and strike down Prop 8. If the Mormons and Knights understood what Proposition 8 really did, they'd join us in asking the Court to strike it.
