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California Prop 8 Took Civil Rights Away – but legally.

May 26, 2009 By: jaysays Category: LGBT News, Marriage Equality

Strauss v. Horton - Prop 8 - Tyrrany of the MajorityThe California Supreme Court released its opinion in Strauss v. Horton, today to a roar of dissatisfaction from marriage equality supporters.  Although the Court was not asked to rule on “gay marriage” directly, the process by which a constitutional revision/amendment can be made was questioned.  In so focusing on the procedural aspects of Proposition 8, the Court, almost wholly, lost touch with the humanitarian aspects of Proposition 8.

While 18,000 marriages sat waiting to hear whether or not they were “valid” in the eyes of the law, hundreds of thousands of future unborn marriages waited to hear whether they would be allowed to be made.  The California Supreme Court answered, essentially, that the will of the majority, tyrannical or not, supersedes the future rights of a minority:

Neither the language of the relevant constitutional provisions, nor our past cases, support the proposition that any of these rights [constitutional right to equal protection of the laws and equally long-standing and fundamental constitutional principles whose purpose is to protect often unpopular individuals and groups from overzealous or abusive treatment that at times may be condoned by a transient majority] is totally exempt from modification by a constitutional amendment adopted by a majority of the voters through the initiative process.

As I read the court’s opinion written by Justice C. J. George with concurring opinions from Justices Kennard Baxter, Chin and Corrigan, I keep looking for the “but.”  Seems the Court painted the opinion with language about the rights of people and long-standing principles to protect people from a “transient majority” while finding that majority has the right to tyrannize the minority class – so WHERE’S THE BUT!?

The only “but” came in the concurring and dissenting opinion written by Justice Moreno:

The rule the majority crafts today not only allows same-sex couples to be stripped of the right to marry that this court recognized in the Marriage Cases, it places at risk the state constitutional rights of all disfavored minorities. It weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority.

Justice Moreno seems to be the only Justice that recognized that a “right” had been stripped from the people and focused his attentions, not on solely the procedures of stripping away rights, but that rights were indeed, taken away.

To put that another way, let’s assume that you suddenly lost your first amendment right to free speech.  Suddenly, you could no longer “say” what it was you wanted to say.  The Court comes back and says, “Sure, the majority took away your right, but they did so within the confines of the law.”  Is it solace that the “letter of the law” was followed to remove those rights?

So, to Justice Moreno for understanding that this is not just a revision issue, this is not just an amendment issue, this is a HUMAN RIGHTS issue, I tip my hat.

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1 Comments to “California Prop 8 Took Civil Rights Away – but legally.”


  1. Jay, a heartfelt thank you for your insight and spot on reporting.
    I was on the streets today with MJ ( A sweetheart) protesting.
    The state supreme court in California took the Cowards way out of this debate and allow bigotry to stand. What a disgrace.

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