Prop. 8 and the Misery of the Law
The right to rebel is my real subject here, but the misery of the law is not incidental. No good case can be made for rebellion as an unqualified good in itself. But the right to rebel also cannot be limited to the rebel causes that were won long ago and have passed over into our national mythology.
There is a historical irony in the events of Nov. 4, 2008: Barack Obama became the first black president of the United States, and a majority of American voters broke down one more racial barrier to high public office. On the same day, Proposition 8 was passed by a small majority of California voters and added this sentence to the state constitution: “Only marriage between a man and a woman is valid or recognized in California.”
A further historical irony was underscored on May 26, 2009: Obama nominated federal appeals court Justice Sonia Sotomayor to the U.S. Supreme Court, a woman who, if confirmed, may be the first person of Latino heritage on the highest court.1 And on the same day, the California Supreme Court voted to deny validity to the legal suits brought against Proposition 8 after its passage, and thus to make the language of Proposition 8 constitutionally binding upon all citizens of the state.
The majority of the court argued that their hands were tied in delivering this ruling. (See Strauss v. Horton, Tyler v. State of California, and City and County of San Francisco v. Horton, 2009.) The constraints of the state constitution were so clear and binding, in the majority’s view, that their own earlier arguments and decision in favor of granting the legal right of marriage to same-sex couples in California had to be consigned to legal history. The majority opinion, written by Chief Justice Ronald M. George (who had also written the previous majority opinion in favor of same-sex marriage), took great pains to insist that the main issue before the court was not the merits or demerits of same-sex marriage, but instead a strictly legal question of who gets to change the language of the state constitution, under what form, and by what means.