Community Commentary:

On May 26, in Strauss v. Horton, the California Supreme Court held 6 to 1 that Proposition 8 lawfully bars same-sex couples from marrying in California. The high court’s majority opinion is harmful for two reasons: It supports group bias against gays, and it essentially removes the equal protection clause from California’s Constitution.

Regarding the first point, from my perspective as a heterosexual married man with children, I simply believe that our society will be better — for both gay and straight people — if and when consenting gay and lesbian adults are allowed to marry.

Group bias, in this case a holding that gay couples can be treated less favorably than heterosexual couples, is harmful to all people in California. I prefer a society based on group tolerance rather than group hatred.

The second issue is equally important but has not received much attention: The legal reasoning the court used to uphold Proposition 8 held that individual liberties can lawfully be taken away by simple majority vote. Importantly, this reasoning can apply to the removal of any individual liberty by ballot initiative, and is not at all limited to removal of the previously existing right of same-sex people to marry.

California’s equal protection clause generally provides greater protection of individual liberties than does the federal Constitution. Before Strauss, it was argued that removing individual liberties from the state Constitution would be a “revision” that could be enacted only by a two-thirds vote of the Legislature, or by a constitutional convention, and then subsequent approval by the electorate.

Instead, in Strauss, the court has now held that the equal protection clause can be modified by the initiative process. The initiative process merely requires that a ballot petition be signed by 8% of the number of voters who voted in the last governor’s election, and then approved by a simple majority vote.

If say 40% of registered voters participated in the last governor’s election, then 8% of that number — a mere 3.2% of registered voters — can place an initiative on the ballot. Then a bare majority of voters can pass the initiative into law.