Prop 8: The Lady or the Tiger

The impending legal dilemma and furor over Prop 8 reminds me of this classic short story.

Tomorrow you can expect to hear all kinds of hooting and hollering regarding the California Supreme Court's hearing on whether Proposition 8 is valid - or not. Lots of high-powered legal arguments will be offered on both sides, and even though the Court may not issue a final ruling for another 90 days, observers will be quick to take the measure of the court's attitude by what is said or not said from the bench tomorrow.

It's a very sticky question. We know, of course, which way we would like the justices to rule. But although I'm not a lawyer, I realize this question is stirring up some very deep constitutional waters. It's not a cut and dried thing; the justices are walking through a minefield.

As I see it, the question is, which is the trump card: democracy (via a free election, such as was done in November), or the laws (which include the court's previous findings on the constitutional obligation to extend marriage rights to all). The vote of the people, or the rule of law?

Before you blurt out an answer, stop a minute and transpose the situation into another framework. Let's say the Supreme Court ruled that alcohol was a dangerous substance and outlawed its sale or consumption in the state; or that the right to bear arms must be extended to allow everyone to carry a handgun openly in all public places; or that children cannot be compelled to go to school against their will, at any age. Or any other issue, plausible or not, that you can think of.

Then suppose the voters pass an amendment overruling the Supreme Court's logic.

Who rules? The people? Or the courts? What are the limits of democracy, of rule by majority vote? Who gets to say where the limit is, and why? It's not enough to say, Well I don't like it. You have to justify by compelling reason why you override either the law or the vote. It's a very complex question, and I don't pretend to have the answer.

But what I do know is the the justices will be excoriated without mercy no matter which way they decide. God help them, I sure wouldn't want to be in their shoes right now.

FYI, from Wikipedia:

Prop. 8 from the CNN exit poll. [November 4, 2008]

For those who voted Yes on Proposition 8 [against same-sex marriage]:

84% of weekly churchgoers – (32% of those polled);[note 1]
82% of Republicans – (29% of those polled);[note 2][note 3]
81% of white evangelicals – (17% of those polled);
70% of African Americans – (10% of those polled);[note 4][note 5]
68% of voters married with children (31% of those polled);
65% of all Protestants - (43% of those polled);
65% of white Protestants – (29% of those polled);
64% of voters with children in household – (40% of those polled);
64% of Catholics – (30% of electorate);
61% of age 65 and over – (15% of those polled);
60% of married people – (62% of those polled);[note 6]
59% of suburban dwellers – (51% of those polled);
58% of non-college graduates – (50% of those polled);
56% of union households - (25% of those polled);
53% of Latinos – (18% of those polled);
51% of white men – (31% of those polled).

For those who voted No on Proposition 8 [in favor of same-sex marriage]:

96% of gays and lesbians - (24% of those polled);
83% of those who never attend church – (21% of those polled);
79% of white Democrats – (21% of those polled);
78% of Liberals – (26% of those polled);
67% of whites age 18-29 – (9% of those polled);
64% of Democrats – (42% of those polled);
62% of singles – (38% of those polled);
61% of age 18-29 – (20% of those polled);
58% of those without children – (60% of those polled);
52% of white women – (32% of those polled);
51% of whites – (63% of those polled);
51% of Asians – (9% of those polled);

Polls showed that gender and income differences shared virtually no correlation with the vote.
Raw data from the poll is also available at http://www.sacbee.com/elections/story/1372009.html.

While the CNN election exit poll has sparked discussion concerning the widely discussed roll of the African American vote in the passage of proposition 8, another report indicates that African American influence was overestimated and that religiosity, party identification, and political ideology were more closely correlated to votes in favor of the proposition.[150]