Some are more equal than others

By Phil Lawler ( bio - articles - email ) | Nov 20, 2008

The California supreme court, which unilaterally amended the state's constitution by inventing a "right" to same-sex marriage, has now agreed to decide whether the people of California can amend the constitution, following the legally prescribed procedure, to undo the court's judgment.

In effect, by approving Proposition 8, the people of California said that the court was wrong: that there is no inherent right to same-sex marriage. Now the court will decide whether the people were right. But we already know the answer to that question, don't we? Having already discovered one invisible clause in the constitution-- the right-to-same-sex-marriage clause-- there's nothing to prevent the court from finding another invisible clause, which bars the people from overruling the court. 

Maybe the learned justices will restrain themselves this time, and limit themselves to the written words of the constitution rather than the emanations from its penumbra. But what if they take the next step-- which is logical enough, really-- and overturn Proposition 8? At that point, if they had any hopes of restraining the court's power, the sponsors of Proposition 8 would have to appeal to the US Supreme Court, making the argument that they had been denied equal protection of law in their home state.

In Massachusetts, the one American state where the same-sex marriage issue has already passed through a full cycle of attempted amendment and judicial challenges, citizens have made exactly that argument. A citizens' petition, signed by well over 100,000 voters, called upon the state legislature to reconsider the issue of same-sex marriage in a constitutional convention. The legislation declined to act on that petition. The state's supreme court-- the same court that had ordered the legal recognition of same-sex marriage-- ruled unanimously that the legislators were constitutionally required to act on the petition. The legislators didn't. So citizens were stripped of a constitutional right. To date that injustice has not been corrected, nor is there any reason to hope that it will be corrected in the foreseeable future.

The record of what happened in Massachusetts should worry the supporters of Proposition 8 in California. It is not a coincidence that in each case, in order to preserve government sanction for same-sex marriage, judges and/or legislators are required to suppress the legal rights of some other citizens. To create new rights for one favored class, the regime violates the rights of another disfavored class-- which could even, as in California, form a voting majority! To protect a "right" that is mentioned nowhere in the constitution requires ignoring rights that are printed clearly in black and white.