“Measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.” – James Madison, Federalist #10

The California Supreme Court has decided to hear a legal challenge on the recently adopted amendment to the State’s Constitution effectively banning same-sex marriages. The amendment reads as follows: “Only marriage between a man and a woman is valid or recognized in California.”

Proposition 8 passed by 52.1% to 47.9% margin, a slim margin of victory, but a victory nevertheless, however challengers claim that a simple majority vote did not satisfy California’s Constitutional requirements, and that a this sort of Constitutional “change” requires a Constitutional revision, not an Amendment, and a “yes” vote by a super-majority of the California legislature, instead of a simple ballot initiative drive plus a majority of popular votes in an election.

So we have a “revision” vs. an “amendment” argument, and this is where the legal challenge to the ban on gay marriage in California rests.

According to the challengers, a constitutional amendment “seeks to elaborate or improve upon existing constitutional principles,” while a revision “seeks to change the ‘underlying principles’ upon which the Constitution is premised.”

So what exactly does Proposition 8 do to the Constitution of the State of California? Does it “elaborate or improve existing Constitutional principles”, or does it “change” its “‘underlying principles'”?

Here’s Article 1, Section 1 of the California Constitution…titled “Declaration of Rights”:

All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

That’s rather straightforward to me…this Amendment is changing the underlying principles of the State Constitution in that it removes from some the ability to enjoying life as well as pursuing and obtaining happiness, and privacy, so the challenge is valid, and argued correctly, it should overturn the voter’s will.

Mind you, the screams of “Judicial activism” will be heard across the nation, but turning this back over to the State legislature to process in accordance to the State Constitution is NOT, activism, but rather the Court discharging its own Constitutional duty…and quite properly in my humble opinion.

I’m with Madison on this one…this was neither decided by the rule of justice, or with any regards for the rights of the minor parties under the California Constitution, but by the will of an overbearing majority, and majority rule equals tyranny, according to Walter E. Williams; I agreed with him then, and I still believe the same.

So long as citizens can be married at a government facility, by a government-licensed Justice of the Peace, or by a magistrate, then the Government has a Constitutional duty to enter those citizens into the civil contract of marriage without regard to the gender of the applicants.

And to all those who see not allowing gay couples to marry as “protecting the sanctity of marriage”, I suggest that the arguments would resonate better if more people would be married in the sanctity of His house, and kept their vows as sworn in His presence.

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