Prop 8 in the news again

Prop 8 was in the news today as the California state supreme court met to hear arguments from lawyers though not about whether gay marriage should be legal but about the legality of voters deciding what is and isn't a "right."

Its an interesting question to discuss. Does the populous get to decide what a right is or should it be left to judges who are "legal and constitutional experts?"

The same judges who decided that outlawing gay marriage was unconstitutional are having to decide again on essentially the same issue even though we just had an election to decide it.

Kenneth Starr, the lead lawyer for the yes on 8 side says, "The people do have the raw power to define rights," Starr told the justices. "The people are sovereign and they can do very unwise things, and things that tug at the equality principle." (Sidenote: Kenneth was the lead prosecuting lawyer in Clinton's impeachment trial and obviously missed the attention)

Shannon Minter, lead lawyer for the No on 8 side argues, "A simple majority cannot be permitted to take away rights from a historical disadvantaged minority without substantially altering the very operation and purpose of equal protection and the court's ability to fulfill its core constitutional function of enforcing equal protection."

Honestly, I'm really torn. Obviously I want gay people to be allowed to get married but that is not technically the issue. I do believe that the people can help decide what are "rights" and what aren't. We always here about the constitution being a "living" and "evolving" document so shouldn't we always be discussing and debating what a right is?

However, if we admit that people can decide what rights are, the people have made an odd choice with this election. The yes on 8 lawyers, by arguing that people get to decide what are rights, are basically saying that it is a right to sit anywhere on a bus but not to marry any person you want. There seems to be a disconnect there.

Ultimately, I think the Yes on 8 side will win and while I'll be disappointed in what the significance of the decision means, I do think that people have the right to have a hand in deciding what are rights and hopefully we'll see a proposition to overturn 8 in 4 years (and I can pretty much guarantee there will be).

All this means is the people who believe gay people should be allowed to get married have to get out there and convince people of it.