The justices had a simple question before them, and the answer is also simple when you abide by the written Constitution.But we live in an era in which many believe the Constitution must be "living," by which they mean that parts of it which stand in the way of their desires must be discarded or ignored; and that parts which have never before been recognized as pertaining to a situation suddenly develop "penumbras" (a phrase used in the Roe v. Wade decision) in which vast new meanings can be found.
Therefore, Prop. 8 should have been upheld.
- First, marriage is not in the U.S. Constitution.
- Second, the 14th Amendment, which is not about marriage but about race, and not about couples but individuals, does not apply to Prop. 8.
- Third, the 10th Amendment recognizes states have powers that are not federal powers and that are not prohibited by the Constitution.
- Fourth, Article IV, Section 4 of the U.S. Constitution guarantees a republican form of government to each state, where a written constitution is the supreme law of the state.
- Fifth, the California Constitution contains Proposition 8 as Article 1, Section 7.5.
One more thing: by ruling that the plaintiffs had no standing although California officials had abandoned their sworn duty to defend Proposition 8, the Court has effectively nullified the power of the state initiative. A hostile Governor can now say openly to the people of his state, "It doesn't matter what laws you enact by initiative. My allies will get a judge to declare it unconstitutional, and then I and my government will refuse to defend it."
