Tyranny of the majority - Page 3

Supreme Court makes the Prop. 8 debate about equal protection and separation of powers

"There are a lot of churches that think it's their religious duty to perform same-sex marriages."


Frank Schubert, who managed the Yes on 8 campaign, scoffs at attempts to frame this debate around larger constitutional issues: "This is simply about marriage and what the definition of marriage will be."

He called the chances of overturning the measure "minuscule," and said, "the constitution belongs to the people." Rather than an initiative upsetting constitutional traditions, Schubert blamed the Supreme Court for reinterpreting marriage: "It's the first time in California that rights that did not exist were granted on a narrow court decision and the people corrected that."

Yet the traditional gender structure of marriage is now in conflict with traditions of equal protection and separation of powers, something same-sex marriage advocates say needs to be the subject of a concerted public education campaign.

"There is a major civics education to be undertaken," Rubin said, recalling how he was also criticized publicly in 1994 for his role in winning a restraining order against Proposition 187, which sought to withhold government services from undocumented immigrants. "Yet the notion that protecting minority interests is not subject to popular will is not that hard to understand."

Maybe, but some constitutional law scholars say the formulation is not quite that simple. "The notion that a majority can't take away a minority group's rights, that just isn't true," said UC Berkeley's Boalt School of Law professor Jesse Choper. He takes a less philosophical view of the case, noting that California law explicitly allows the constitution to be amended, essentially however the people see fit, a process far easier than the one to change the federal constitution.

Choper said the specific question before the court is whether voters can remove same-sex marriage rights from the constitution. "And the answer is yes, if they do it properly," he said. That determination will come down to whether the judges believe this change is a mere amendment, or a more serious revision. Choper said the case law on that question isn't well-established, but his reading of it is that plaintiffs face a real challenge in arguing that a simple change to the constitution — albeit a weighty one — requires the revision process. "It's uphill," he said. "They'll have to cut a new cloth."

But Herrera and his fellow plaintiffs don't agree. While he characterized the coming legal battle as difficult and complicated, he expressed confidence in their ability to show that Prop. 8 changes core constitutional principles.

"That's why I think this is a revision rather than amendment, because it would so radically change the balance of power and responsibility between our branches of government," Herrera said.

Santa Clara County Attorney Ann Ravel, who joined Herrera's press conference, agreed, stepping up the podium to say, "Let me just add something to that. If this is not a case of revision, it's hard to imagine any case that the court might find there to have been a revision, and there have been some."

While Choper may not agree with the plaintiffs on how the court will decide the equal protection questions, he does agree that the outcome could have serious implications for minority rights and the ability of voters to target disfavored groups. "If they can do it to this minority, they can do it to other minorities," Choper said.

Rubin said the religious groups pushing Prop.