by Edmund G. Brown, Jr.
The California Supreme Court finds itself center stage this Thursday when it will hear oral arguments on whether it should uphold Proposition 8’s ban on same-sex marriage.
The case touches the heart of our democracy and poses a profound question: can a bare majority of voters strip away an inalienable right through the initiative process? If so, what possible meaning does the word inalienable have?
The state faced a dilemma like this before. In 1964, 65 percent of California voters approved Proposition 14, which would have legalized racial discrimination in the selling or renting of housing. Both the California and U.S. Supreme Courts struck down this proposition, concluding that it amounted to an unconstitutional denial of rights.
As California’s Attorney General, I believe the Court should strike down Proposition 8 for remarkably similar reasons – because it unconstitutionally discriminates against same-sex couples and deprives them of the fundamental right to marry.
Some vigorously disagree. That’s the position of Ken Starr and those who argue that a simple majority can eliminate the right to marry. But such a claim completely ignores California’s history and the nature of our constitution.
Fundamental rights in California are recognized and protected by our constitution, which declares in Article I, Section 1 that “all people are by nature free and independent and have inalienable rights” and “among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”
These fundamental premises of a free people were declared when the constitution was first adopted. The initiative process came much later in 1911, when the immediate concern was to give the people power over the railroads, which were seen as having a stranglehold over the legislature. In creating this initiative process, there was no discussion or any evidence of intent to permit a simple majority of voters to take away the pre-existing rights deemed inalienable by Article I.
In 2008, the California Supreme Court was faced with the question of how the values enshrined in Article I apply to same sex marriages. It concluded that the concept of “liberty” includes the right to form the enduring relationship called marriage and that no compelling interest justified denying this right to same sex couples. Just like the right to be free from discrimination in housing, citizens have the right to be free from discrimination in state-granted marriage licenses.
With this Supreme Court decision, same sex marriage has the protection of Article 1 and, like other inalienable rights, cannot be taken away by a popular vote – whether it be 52% (as was the case in Proposition 8) or 65% (as it was for Proposition 14).
I believe, therefore, the Court must conclude as I have that Proposition 8 is unconstitutional and should be stricken.
Edmund G. Brown Jr. is the Attorney General of the State of California.