Amazingly, some of my friends and acquaintences appear shocked about the outcome of the Prop 8 appeal to the California Supreme Court. Seriously? Unhappy, I understand. But anyone expecting to win the battle on appeal after the state Constitution has been amended is misinterpreting the issues at stake.

California is among the few states in which the Constitution can be amended quickly and easily, by a simple majority on a referendum. And putting initiatives on the ballot is relatively easy as well, requiring either a vote of the state legislature or an initiative – basically a petition requiring a few thousand signatures. Unlike the earlier Proposition 22, which involved a statutory definition of marriage, Prop 8 involved an amendment. If you see the amendment as one that writes discrimination into the Constitution, you're not wrong. Regardless of how distasteful or discriminatory the amendment in question may be, the appeal asked the California Supreme Court to declare part of the Constitution unconstitutional. If that sounds possible, it isn't.

The fundamental job of the judiciary being to interpret the law in accordance with the Constitution, their hands are tied here. Hypothetically, let's say California voters voted for Prop 666, amending the Constitution to make it illegal for black people to ride public transit. Your liberal outrage aside there's absolutely nothing the Court could do about it. Once the Constitution is properly amended, it ceases to be possible for the Court to find it unconstitutional to discriminate on the basis of race on public transit in this example. The parts of the Constitution that contradict it (equal protection, etc.) don't matter anymore. They've been amended. The California Constitution is the basis of all law in California and once it is amended to allow explicit discrimination, that type of discrimination cannot by definition be unconstitutional. Unless the appellants can argue that the amendment was not properly enacted (it was) they are wasting their time in court.

Of course Prop 666 would be appealed to the Federal courts and found unconstitutional for violating the protections afforded in the United States Constitution, which is legally superior to any state constitution. Does that seem like a promising option with Prop 8? Anyone think the US Supreme Court is going to give a gay-friendly ruling on this one? Me neither.

Face it, the anti-gay marriage movement played this one perfectly. They picked the right venue (a state with a virtual drive-thru amendment process) and the right time – an era in which the pro-gay marriage side won't want to press its luck by appealing this to the Roberts-Scalia-Alito-Thomas court. They came up with a successful plan and enacted it. The take-home lessons here are two:

  • What is lost at the ballot box must be won at the ballot box. The state legal system can't help here and the conservative majority of the U.S. Supreme Court precludes that route.
  • There is a very goddamn good reason that the process of amending the U.S. Constitution is so difficult. It's difficult because it isn't supposed to happen regularly and it isn't intended to allow the legal codification of public opinion – especially the discriminatory kind. The Founders had their flaws, but they also had their moments. They realized that amendments are incredibly powerful things and they shouldn't be undertaken lightly. They can change, revoke, or supercede even our most basic, fundamental rights.

    We don't distribute rights by show of hands in this country, we enshrine those rights in our Constitution(s). The Constitution is supposed to endure, in marked contrast to the fickle swings of public opinion. That is why we make it so very hard to change. We don't want the fact that 75% of the public thinks gay marriage is wrong or slavery should be legal or the government should be able to promote Christianity to become the law of the land. It is hard to amend the U.S. Constitution specifically so that we can't legislate our prejudices. California saw fit to eliminate that safety valve and consequently the biases of the 51st percentile of voters becomes not only the law but the law by which all others are judged.

    They played it well and won. We lost. Don't sit around whining about it and expecting ridiculous legal arguments to produce courtroom victories based on what's "fair" or "right." Recognize the mistakes that were made and move on to the next (electoral) fight. Repeal or replace that amendment by the very same process used to bring us to this point and I think you'll find that the California Supreme Court, whose job it is to interpret the Constitution as written, will produce rulings more to your liking.