Generally, I’m loath to question the constitutionality of a public referendum, but the California Prop 8 vote and yesterday’s state court ruling should not be viewed through the lens of populist democracy.
Rather, the vote only uses the trappings of democracy to restrict the rights of a minority group, while the court seemed to seek some politically pallatable compromise that ultimately pleased only the most vociferous of the anti-gay marriage contingent.
Consider what The New York Times had to say in its editorial, “A Setback for Equality“:
The California Supreme Court got it terribly wrong Tuesday. It upheld Proposition 8, a state constitutional change on last fall’s ballot intended to prohibit marriage by couples of the same sex. In addition to denying basic fairness to gay people, the court’s 6-to-1 ruling sets an unfortunate legal precedent that could allow the existing rights of any targeted minority to be diminished using the Election Day initiative process.
Gays and lesbians are the primary victims in all of this, but the ruling has the potential to reach beyond the marriage-equality debate into other areas of civil-rights law, creating the possibility that equal protection under the law is subject to a majority vote.
Perhaps I’m being overly sensitive. But as a member of an ethnic group — Jews — that has been subject to enslavement, pograms and the Holocaust, a group that faced a level of discrimination and religious hatred that only a few ethnic and religious groups can comprehend, I don’t think so.
Prop 8 is an example of tyranny of the majority and further proof that the rights we believe derive some a higher power are really just manmade constructs — as George Carlin pointed out in “You Have No Rights” on It’s Bad for Ya — that we must fight to preserve. We cannot rely on the courts or the benificence of lawmakers, we must do what the civil rights movement did and create a moral imperative that makes it impossible for politicians not to do the right thing.
Hank Kalet 
I\’m not sure why being a Jew gives you some special privelege to speak for the \’oppressed,\’ but OK, if it does then I will place my circumcision on the line and say that as an even more stigmatized minority than plain-old-Jews, Orthodox Jews oppose so-called \’gay marriage.\’ It is wonderful that in a free society we get to do so much of what we want, but every society, even melting pots get to self-define and to create a hierarchy of values. For example, we have chosen the value of \’a woman\’s right to choose\’ over a \’fetuses right to life.\’ Now you can obfuscate by trying to define a \’fetus\’ as a non-person, but we all know very well that many viable fetuses who could and would become normal folks, even folks who write blogs, for example are aborted without so much as a fare-thee-well. Prop 8 chooses to value the cultural definition of marriage, and whatever priveleges go along with that as something that happens between a man and a woman, and not between two of the same gender. That\’s a value judgement. Another example, one that affects me personally: society has chosen to define \’first amendment rights\’ as applying to the educational system such that those who choose to give any religious education to their children cannot claim the otherwise sacrosanct right to a \’free public education,\’ yet they are required to pay property taxes like everyone else, and cannot even deduct tuition for the secular portion of the education. That\’s a value judgement. It seriously and materially affects my standard of living simply because I have made some personal life choices that TO ME seem impossible to be made any other way. Sound familiar? We all live with the value judgements of society. There are legions of examples like this and they aren\’t all about gender or sexual preference. I don\’t see why homosexuals or Jews for that matter get to claim \’special privilege\’ for their particular values–unless they can convince the rest of society to adopt them. My suggestion: go back and educate and organize. It\’s not over \’til its over. your pal, Ben Pincus