According to an email update just out from Bill May of Catholics For The Common Good (not to be confused with “Catholics in Alliance for the Common Good”), the California State Senate passed on Monday resolution SR7, a non-binding resolution calling on the State Supreme Court to overturn Proposition 8, the amendment to the state constitution which passed back in November, defining marriage in California as between a man and a woman.
Anti-Prop 8 Resolution Passed the California Senate Today
Referring to the sovereign power of the voters as “mob rule”, San Francisco Senator Mark Leno asked the State Senate to adopt SR7, a resolution calling on the California Supreme Court to overturn Proposition 8. The measure, that has no force of law, passed 18-14 this afternoon (Monday, March 2).
A similar measure, HR 5, is on the Assembly floor and could come to a vote at any time. Please call your Assembly member and ask him or her to vote “NO”. Details can be found here: http://www.ccgaction.org/family/protectionofmarriage/CA/resaction09-02-17#action.
Perhaps our lawyers can enlighten me, but it seems to me that should the State Supreme Court follow the legislature’s request and overturn the amendment, then the democratic process would have fundamentally broken down.
The argument for throwing out Prop 8 is that it violates the equal protection clause of the California Constitution by denying a “fundamental right” to a particular minority group. Of course the difficulty is that Prop 8 does not claim to deny a fundamental right to a minority group, but rather defines marriage as something which can necessarily only be between a man and a women. Now since the California Constitution nowhere else speaks to the definition of marriage, I suppose the only argument the court could use would be some sort of universal outside knowledge that marriage is open to all of any combination of sexes and that the amendment thus seeks to single out one particular group to deny that right.
In other words, it could only throw Prop 8 out by assuming the conclusion. Yet if a court can do this, doesn’t that basically undercut the entire point of having laws, since one could then throw out any law on the basis of assuming that it was impossible to have such a law? Goodness knows, I’d be the first to agree that the project of ruling by positive law falls apart once there is not longer a common philosophical and moral basis for the state’s culture, but this would seem to be one of the first examples I can think of of such a collapse actually happening before our eyes.