The California Supreme Court’s decision upholding Proposition 8 will be analyzed as a referendum on gay marriage. That would be a mistake. There are much higher stakes in the case. At bottom, it posed the question, What is a Constitution for? The Justices did not address that issue explicitly, but their action spoke volumes.
Prop 8’s ratification by the voters in the 2008 election overrode the Court’s earlier decision invalidating the state’s marriage exclusion of lesbian and gay couples. Lesbian and gay couples challenged Prop 8 as an “unconstitutional constitutional amendment.” Their argument, rejected by the Court, was that Prop 8’s fundamental change in minority rights should have gone through the more deliberative process for constitutional “revisions.” California Attorney General Jerry Brown made a similar argument, that a Constitution cannot be amended to retract “inalienable” rights.
At war in the Prop 8 case were two competing visions of what a Constitution is for. Representing the supporters of Prop 8, former Judge Kenneth Starr argued that a Constitution (or at least the California one) is an expression of the values held by the citizenry. To use Aristotle’s language, the Constitution is the “soul of the city.” Modernizing Aristotle, California provides its citizens with formal opportunities to express their constitutional commitments, through popular initiatives. Once the voters had spoken, the Court itself would have been engaging in unconstitutional usurpation if it had insisted on same-sex marriage.