“Can you take away what the court in May said was a fundamental right involving a suspect class - which is a class that’s historically been discriminated against – by simple majority vote, and the argument is that it creates sort of a mob rule without any kind of deliberation that would be created through the legislative process,” noted Professor Culhane
in discussing the upcoming California Supreme Court case challenging the legality of the recently based Proposition 8, a ballot initiative that passed on election day, altering the state Constitution to define marriage as a union between a man and a woman and eliminating the right of same-sex couples to marry.
On December 2nd, Professor Culhane spoke on the subject of the legal challenge to Proposition 8 as a guest on WHYY Radio’s Radio Times program
with host Marty Moss-Coane. Professor Culhane was joined by Gary Mucciaroni, chair of the political science department at Temple University and author of Same Sex, Different Politics: Success and Failure in Struggles over Gay Rights
Professor Culhane discussed the difference between amendment and revision to California’s Constitution, and how the difference might have an impact on the legal challenge to Proposition 8. Where revision would have required the change to pass the legislature with a two-thirds majority before being voted on by the people, while an amendment only requires a majority vote. The legal challenge rests on the idea that Proposition 8 should have been considered a revision rather than an amendment. The discussion ranged over a number of other topics as well, including how the federalist system interacts with state laws on gay marriage and civil unions and how and why social equality has been so difficult for gays and lesbians to achieve.
When the discussion turned back to the courts, Professor Mucciaroni asserted that going through the courts might not always be the best way, saying, “The problem with going through the courts is that they often short-circuit deliberation.” He added that too often there is “No real discussion, and that’s what you really have to have with this kind of issue because it is a very controversial one and a difficult one for many Americans. And also of course the fact that the Courts, even when they’re elected, they’re viewed as an undemocratic agent that’s kind of imposing this decision on a reluctant populace.” Professor Culhane disagreed in part, noting, “I don’t think we would have gay marriage in any state if the courts hadn’t gotten involved,” before adding, “What can happen through the courts is - the courts don’t just make decisions, they also themselves provide an important educational function, so if the court says this, it gets people talking about it and thinking about it. So I don’t think it’s a simple as saying courts bad, courts good. I think they serve a purpose.”