When is an Amendment NOT an Amendment?

A week ago or so I made a post about how vehemently I am against Kentucky's Senate Bill 68, which wants to make it illegal for unmarried sexual partners who are living together to adopt or foster a child. The bill is supposed to help protect children, but its real intent is to keep homosexuals from adopting children. Since homosexuals cannot legally marry in this state, they thus would not be able to adopt under SB 68. My lack of support for the bill no doubt angered all of my conservative friends, and I even heard from some of them. Today I'm going to tick off the other side by taking a stand AGAINST the California Supreme Court.

I was a little dismayed when I read a few days ago that the California Supreme Court is going to review the amendment banning gay marriage in California which was passed this last November. I'm dismayed NOT because I think the ban on gay marriage should exist (I'm actually undecided about gay marriage at this point), but because if the court chooses to overturn the amendment I believe it will have dire consequences for democracy as a whole.

This new amendment is not the first time that California voters have voted against gay marriage. In 2000, Proposition 22 stated that "Only marriage between a man and a woman is valid or recognized in California." This proposition was passed by the people with 61% of the vote, a fairly wide margin of victory. The people of California had spoken.

After eight years of contentiousness, though, the California Supreme Court overruled the proposition early in 2008, stating that it unconstitutionally denied rights to a group of people. And I DO NOT have a problem with the Supreme Court doing that. The constitution is sort of the rule book of the people, and the Supreme Court is charged with interpreting the rules. If they say that the proposition is against the rules, then it is.

But the people have recourse. Via an amendment they can CHANGE the constitution, thus changing the rule book that the Supreme Court must go by. And that it exactly what happened back in November. Opponents of gay marriage said, "Okay, Supreme Court. Our proposition is against the California Constitution, huh? Well, we'll just try to change the Constitution, then." So Proposition 8 came into being.

The proposition originally was almost identical to the older Prop 22. Prop 8 originally stated, "Proposition 8 amends the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California." California's Attorney General, though, an advocate of same sex marriage, changed the wording (as was his right) to read as follows: "Proposition 8 changes California Constitution to eliminate the right of same-sex couples to marry." Most pundits assumed that the negative spin in the new language would almost certainly doom the proposition, and polls taken by experts confirmed that the majority of people were against the ballot initiative.

However, what polls say and what the voters actually do are often different things, and when the final votes were counted, 52 percent of the voters had voted in favor of the ban. It was official. The constitution of the state of California had been changed. Marriage was for men and women only in that state.

But hold on! Now it's back in court again. The California Supreme Court is holding hearings on the idea that this wasn't an AMENDMENT to the constitution at all. Rather, it was a REVISION, a much stronger thing, and REVISIONS to the constitution are not allowed!

This whole argument is malarkey. If the California Supreme Court can rule that THIS amendment isn't really an amendment, what's to prevent it from ruling that any other amendment is not actually an amendment? And thus, what's to prevent the court from doing pretty much whatever the hell it wants? Imagine the power we'll be putting in these few jurists hands!

Advocates of same sex marriage should abandon this line of attack. If they think they are right and that same sex marriage should be allowed, then they should set out to educate people and to change minds, and then they could put on the ballot at a future date their own proposition to revise the amendment, this time making marriage by homosexuals legal. But trying to skirt the whole idea of amendments is a bad idea, and I guarantee you that if they're successful the groups against this amendment will find themselves in the opposite position on some future date.
And that's why I hope (though I don't expect) that the California Supreme Court will rule that this is a valid constitutional amendment. If they rule that it is not, democracy itself could be in peril in California.