Mar 092009
Authors: Ian Bezek

This past November, California voters passed an amendment, Proposition 8, to their state constitution that defines marriage, saying, “Only marriage between a man and a woman is valid or recognized in California.”

Now, a series of lawsuits have been filed in California courts to argue that the amendment passed by the people should be overturned. The lawyers arguing for the overturn of Proposition 8 made two main points. One of them was mundane legalese. However, the other argument is far more interesting.

The opposition to Proposition 8 argues that the amendment constitutes an abridgment of their inalienable rights. An inalienable right is a right that, according to legal theory, cannot be taken away by laws, kings or any other sort of human institution. All humans have these so-called moral rights. The right to not be murdered, for instance, crosses all cultures and legal systems.

Is gay marriage an inalienable right? Not really.

Constitution Society founder and three-time congressional candidate Jon Roland explains that the founding fathers weighed in on the issue of inalienable rights in the Bill of Rights, saying that certain rights became so-called social rights.

These rights are codified within the social contract of a society. The social contract of society is essentially the agreement between people and their government; the people give up some of their liberties in return for protection from the state.

Thus, in California, the voters decided in a fair election to determine that their social contract would not codify gay marriage as a constitutional right.

Is that the right or wrong decision? Frankly, it doesn’t matter. The people voted and the people decided.

It’s important to remember that last year the California Supreme Court struck down a law that would have made gay marriages illegal in California. Now, this case is appearing before the same court, and early indications are, according to the San Francisco Chronicle, that the court will uphold this amendment.

Chief Justice of the Supreme Court Ronald George said, “There have been initiatives that have taken away rights from minorities by majority vote … Isn’t that the system we have to live with?”

George was a member of the majority who struck down the ban on gay marriages last year, but he realizes the validity of the Constitutional amendment.

Another justice, Joyce Kennard, said, “Here we are dealing with the power of the people, the inalienable right to amend the Constitution.”

She suggested that gay marriage advocates could offer a new initiative to the people of California to undo the old one.

This would be the right approach. The people do have the power to amend their own constitution, and rightfully so. The people have spoken; it is not the role of judges to come in and overturn the will of the people.

Joyce Kennard echoed this point, saying, “What I’m picking up from the oral argument in this case is this court should willy-nilly disregard the will of the people.”

The will of the people may or may not be correct. However it should become law, that is what democracy brings us — for better or worse. Regardless of the voter’s decision, the practical outcome of the amendment is extremely limited; gay and lesbian Californians still enjoy the generous rights of civil partnership – rights that far exceed what are available in most states.

However, if calling the union of gay couples “marriage” is so important, the people of California must vote in an open election to reverse their earlier decision. It is not the court’s place to strike down the will of the people.

Ian Bezek is a junior economics major. His column appears Tuesdays in the Collegian. Letters and feedback can be sent to

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