November 25, 2008
The New York Times
Editorial
California's Legal Tangle
The approval of Proposition 8 in California, a constitutional change designed to prohibit marriage between couples of the same sex, was not just a defeat for fairness. It raised serious legal questions about the validity of using the Election Day initiative process to obliterate an existing right for a targeted minority.

These deeper questions were largely lost during the expensive campaign by proponents of Proposition 8. Essentially, in their rush to enshrine bigotry in the State Constitution, they circumvented the procedure specified in that same document for making such a serious change. Now, the state's top court, which has agreed to hear the legal challenge to Proposition 8, has the unpleasant duty of tossing out a voter-approved ballot measure.

The case turns on whether Proposition 8 is a constitutional amendment, requiring only approval by a bare majority of voters, or a more far-reaching constitutional revision, requiring a two-step process: either a constitutional convention or a two-thirds vote of the State Legislature followed by voter ratification. The court, which has struck down several measures before, should not lightly overturn the will of the people. But it has not confronted a revision this far-reaching in terms of upsetting basic rights and the state's constitutional structure.

The court has correctly determined that the equal protection clause prohibits governmental discrimination on the basis of sexual orientation, which extends the right of marriage to same-sex couples. But the issue goes well beyond gay rights. Allowing Proposition 8 to stand would greatly limit the court's ability to uphold the basic rights of all Californians and preclude the Legislature from performing its constitutional duty to weigh such monumental changes before they go to voters.

Treating Proposition 8 as a mere amendment would set a precedent that could allow the rights of any minority group to be diminished by a small majority. The measure passed 52 percent to 48 percent.

In California, sitting judges are subject to elections, and some supporters of Proposition 8 raise the threat of trying to oust justices who do not go along with trouncing on people's rights and proper constitutional procedure. We trust the court will not be intimidated. The justices' job is to protect minority rights and the State Constitution - even when, for the moment at least, it may not be the popular thing to do.




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