The discussion of gay marriage is rarely framed within these terms, so I was happy to stumble on this article on RCP. Steve Chapman discusses the unfolding situation in California, where, initially, the Supreme Court struck down a law that banned gay marriage. The voters then approved of a constitutional amendment, Proposition 8, that legally changed California’s constitution to disallow gay marriage. Now, supporters of gay marriage have started attacking the constitutional amendment, attempting to nullify it on questionable grounds:
Jerry Brown insisted that the people of California, who created the constitution, don’t have the power to change it as they tried to do this time. He argued that it protects pre-existing inalienable rights, including the right to marry, and that an inalienable right “cannot be taken away by a popular vote.”
He’s right to a certain extent. If the United States passed a constitutional amendment that took away freedom of speech for a certain group of citizens, this would certainly be cause for concern. Now, I do not have any problem with gay marriage. My view on this topic has been changing over the past several years, and if a ballot were placed in front of me and I had to decide between “Yes” and “No,” I would either vote “Yes” or abstain from voting. But at the same time, I think it would be a huge stretch to characterize gay marriage as an “inalienable right.” If the right to have the state recognize your partnership with someone of the same sex for the purposes of tax filings, hospital visits, etc., is an inalienable right, then what isn’t inalienable?
Chapman concludes that gay marriage supporters, in California, would be better off not trying to nullify the same constitutional procedures that might eventually grant them the right to marry:
The nice thing about the referendum option is that once gay-marriage supporters constitute a majority, they can promptly amend the constitution to their liking — as I hope they do. But it is hard to win voters to your side while telling them they have no legitimate say on the issue. Like it or not, the California Constitution notes a basic truth in a democratic society: “All political power is inherent in the people.” Advocates of same-sex marriage might do better by treating those people not as opponents to be defeated but as allies to be won.