The Equal Protection clause generally provides that “no state shall … deny to any person within its jurisdiction the equal protection of the laws”. It is based on this clause in their respective state constitutions that the supreme courts of Connecticut, Massachussetts and California struck down bans on gay-marriage. Not to be outdone, a segment of the population in both CT and CA sought to have these decisions reversed by some form of constitutional amendment. Prop 8 in California passed, the call for a Constitutional convention in CT failed.
So what’s a Californian to do? And where does this leave the Equal Protection Clause of California? The primary purpose of the equal protection clause, as I see it, is to protect a minority of citizens from the subjugation of a majority. Every individual should have the same rights as every other individual. That has to be the thrust of the EPC. But a slim majority of voters in California decided that gay people were less deserving of the same rights (whether this was done on the up-and-up in open to debate: there are reports that proponents of the ban were using some downright despicable tactics, like scaring people [scroll to the bottom] that gay-marriage meant a gay curriculum in schools).
So what now, anyway? Plenty, apparently, as this post from Co-op highlights. The attorney for the first gay couple to get married in CA will file a lawsuit against Prop 8 with a new and controversial legal argument (although it doesn’t state what that is), there may be a large number of ballots that have not been counted and the city of San Fran will file another suit.
But there’s yet another challenge – one that may well shape up to be the most interesting Constitutional issue of our times. Yes, whether the amendment itself is uconstitutional because it violates the Constitution. That’s the crux of the ACLU/Lambda challenge: the so called “amendment/revision” distinction. An amendment requires only a simple majority of voters, but undoing a core fundamental right and removing it from the Constitution is a revision to the Constitution and requires a constitutional convention and 2/3 majority of the legislature.
The post at Co-op seems to disagree:
Another suggestion from a friend is that the proposition fails because it is inconsistent with other constitutional provisions. That seems to misunderstand the function of constitutional amendments. Where these are inconsistent with other provisions, they are typically intended to overrule those provisions. (I.e., the 13th amendment and the slavery provisions; or the Prohibition amendments.) As a matter of basic interpretation, I think that the reading one would give it is that to the extent that the Equal Protection clause required marriage to be extended to same-sex couples (Marriage Cases), that interpretation is now overruled.
I do think the examples he gives above are different from the situation at hand. At least with the prohibition amendments, a later amendment specifically repealed an earlier amendment. That’s not the case here, where a fundamental right is at stake.
Could a State decide to take away fundamental rights? Can CT tomorrow pass an amendment banning inter-racial marriage? Or making all immigrants slaves? Or preventing women from marrying men younger than them? Or heck, rolling back all the way to the days of “separate but equal”? After all, it was an interpretation of the Constitution that banned racial discrimination.
Why would that not be subject to challenge? And if it is, then why isn’t CA’s Prop 8?
I think the coming months will indeed see this challenge and the question of what happens when a provision of the Constitution clashes with a subsequent amendment. Which is given more weight?
To end, I leave you with this personal note from this DKos post about Prop 8:
I still can’t believe that millions of total strangers who have never so much as laid eyes on me had the right to vote on my rights and equality at all, let alone that they voted against them. If this was, in fact, an unconstitutional proposition, it means they did not have that right. It won’t change the fact that they voted how they did, but it will take some of the pain away.
And that’s just it. Do we want one group of people deciding the rights and freedoms of another group? Thank you, CT, for having the good sense to not fall for this one.