The Prop 8 Decision: Equality Will Win Out in the End

Tomorrow the California Supreme Court will issue its verdict on whether or not Proposition 8 is constitutional. The answer to this seemed obvious on a personal level, but I know that legal definitions can often be more convoluted and confusing, so I spent the last two days reading the California Constitution and the arguments against Proposition 8 to see if I could come to my own conclusions. As I researched, reading many of the current articles about the whole subject, I realized that even if the Court upholds Prop 8, its days are numbered.

After looking over the California Constitution, I realized that Prop 8 was a masterstroke of evil and legalese. There was little or nothing in the existing California constitution to refute it, except for those points which are being decided on by the CA Supreme Court right now: Is Prop 8 invalid because it constitutes a revision rather than an amendment? And, does Prop 8 violate the Separation of Powers doctrine under the Constitution? The first one seemed obvious to me, but we're talking about legal definitions here rather than common sense, but the second question seemed more obtuse and required a lot more research before I was able to understand it.

Does Proposition 8 count as a revision of the Constitution rather than an amendment? Since it takes away a previously existing (albeit for a brief time) right for a group of people, the answer is an obvious "yes." Had same sex marriage never been legalized, there would have been a valid argument for it being and amendment, but stripping away a right that the same Supreme Court had previously ruled as existing, clearly makes it a revision and not an amendment.

The question of whether Proposition 8 violated the Separation of Powers Doctrine under the Constitution seemed a bit murky at first, and looking at the Constitution itself didn't help matters. All it states is that "The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution." What is not said here is that while the legislative branch's job is to pass the laws, it is the job of the judicial branch to interpret them. Proposition 8 only exists because some California citizens didn't like a particular interpretation of the existing law by the courts, so they passed a law which took the power of interpretation away from the courts. In effect, it was a legal act of spite, and the proper action of the courts would be to strike it down.

The main argument I've heard for the Supreme Court keeping Prop 8 is that they don't want to overturn the will of the voters. This argument was presented strongly by one of the Justices during the the Prop 8 hearings in March and gave many people the impression that Prop 8 would indeed be upheld. If this is the basis of their ruling, it should be noted that the will of the voters is shifting, and now favors overturning Prop 8 by a slight majority. Time is on the side of progressives, and the average person is getting over their fears and realizing that the world won't end because gay people are allowed to marry each other.

So if tomorrow is a setback rather than a day of celebration, I am confident that we'll see Prop 8 overturned and same sex marriage legalized within the next two to four years. I'll even be as bold to predict that we'll see a federal same sex bill in the Senate be 2016. I'm betting that the Supreme Court will do the right thing though and tomorrow will be a day of (re)celebration.