How California made the Wrong Choice the Right Way

NB: Since writing this, I might have even changed my mind. By the logic I put forward here, Loving vs. Virginia - the case which allowed an interracial marriage to take place, despite segregation - should have also been decided in the legislature, not the courts. By that logic, interracial marriage might still be illegal today! Not good!

As readers of Militant Ginger will know, I'm totally in support of same-sex marriage and was intensely disappointed when the California electorate shot down that liberty with their vile amendment to the State Constitution 'Proposition 8.'

However, when the California Supreme Court decided to uphold the amendment during appeal, I felt they made the right decision.

Don't get me wrong - I haven't changed my belief that same-sex couples should have the same right to marriage as heterosexuals. I just feel that this is an issue that's far too important to be decided in the courts.

Proposition 8 was ratified by referendum - the people of California were allowed to personally decide the issue, instead of leaving it up to the state legislature.

52.24% of them voted to redefine marriage as 'between a man and a woman,' obliterating the right same-sex couples previously had to enter into committed marriages themselves.

Sure, the fact that this issue was decided by referendum is incredibly disappointing. California's supposed to be a liberal state and has often led the way in progressive politics. These ballot results exposed underlying conservatism and religious zealotry in what many of us had previous considered 'safe territory.'

But the fact is, the vote was cast and the decision was made.

That it was the wrong decision is not up for debate - but, nevertheless, that's how democracy works. In the words of Thomas Jefferson: "A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine."

When the appeal reached the California Supreme Court, it stopped being about right or wrong and became about democracy and the law - and if the judges had upheld the appeal, it would have thrown everything the issue stands for into disarray.

"Put simply, the appeal complaint is that it's just too easy to amend the California Constitution through the referendum process," wrote Justice George, explaining the Court's decision. "But it is not a proper function of this court to curtail the Democratic process; we are constitutionally bound to uphold it."

7 million people voted to redefine the institution of marriage. Despite questions about the morality of that decision, or whether or not it contradicted the US Constitution, you simply can't ignore the fact that 52.24% of voters said 'this is what we want.'

Conservative pundits like Mark Levin often throw around the term 'legislating from the bench,' but if the seven Supreme Court justices had upheld the appeal, overruling the Constitutional amendment, 'legislating from the bench' would have been exactly what supporters of Prop 8 would have accused them of doing.

To them, it would have been a clear demonstration that those seven voices were more important than their seven million. Any faith in the democratic process would have disappeared forever - 'Prop 8' detractors had already seen their freedoms stolen by the ballot box, now the proposition supporters themselves would see their voices overruled by the courts.

Supporters of Prop 8 would never have accepted a Supreme Court decision to allow gay marriage. They'd have fought against it and won, as same-sex marriages would only continue until they manufactured another court ruling splintering that liberty once again.

The sad fact is; the only sustainable route to securing same-sex marriage is through the legislature. It has to be a freedom secured through democratic methods, otherwise it will never mean as much as the 'gay marriage' laws passed in Massachusetts, Connecticut, Maine and Vermont.

I'm not arguing that same-sex couples deserve the right to marry. I'm open-minded to comparisons between the struggle for gay rights and the civil rights movement. During the battle against segregation and racism, the majority of voters didn't always make what we know today to be the 'right' decision. The same applies today.

But, nevertheless, we have to uphold the democratic process, otherwise it's meaningless.

The good news: In 2010, the gay rights movement will have same-sex marriage back on the ballot - and this time, they'll win that fight. Last time around, less than 5% of votes separated the gay rights movement from victory. I'm confident that they can win those voters over this time.

When that happens - when a majority of Californians take a stand and support the freedom of same-sex marriage - then it'll be a long overdue, permanent victory. One that religious zealots and conservatives can't take away.