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California's same-sex marriage case affects all of us

It forces us to consider why we have rights.

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What now for California? In May, its Supreme Court announced a right to same-sex marriage. Gays and lesbians rushed to take advantage of the opportunity; by early November, 18,000 such marriages had been performed. But on Nov. 5, they stopped. By a 52-47 percent margin, California voters approved Proposition 8, an amendment to the state constitution prohibiting same-sex marriage.

Immediately, gay rights supporters filed lawsuits asking to overturn the ruling. Critics are calling Proposition 8 an illegal constitutional "revision," fundamentally altering the guarantee of equality – not a more limited "amendment."

This suit raises a serious question: When should a majority have the power to take away a constitutional right granted by a court?

It's a question that forces us to think about why we have constitutional rights in the first place, and why they are enforced by judges. But it is not simply a theoretical puzzle. All of us enjoy constitutional rights, and most of us are at some point in a minority. All of us could be affected.

American constitutional practice has generally been to expand rights over time, both by amendment and by judicial decision. Amendments to the federal Constitution, for example, gave women and minorities the right to vote. Judicial decisions have expanded the constitutional guarantee of equality to protect more and more groups. Some of these decisions remain intensely controversial, but none have been overruled by a federal amendment.

Of course, amending the federal Constitution is difficult. It requires approval by "supermajorities": two-thirds in the House and the Senate and three-quarters of state legislatures. Federal rights cannot be taken away by a simple majority vote.


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