In which Fosco defends the role of the courts in democracy...

As you've probably heard, the CA Supreme Court has agreed to hear legal challenges to the despicable Prop H8. As the SF Chronicle notes,

the justices asked for written arguments to be submitted through Jan. 21. The court could hold a hearing as early as March, and a ruling would be due 90 days later.

That means that we could have a decision by mid-June.

This is good news, of course (although, as the article notes, there is reason to fear that one of the justices that originally overturned the marriage ban may not be willing to overturn Prop H8). It's also good news in that it could allow gay couples to plan late-June weddings (although, in California, a "June wedding" is possible nine months a year).

You may have noticed the little "teapot tempest" occurring in the comments section of one of Fosco's previous posts on H8. One of Fosco's friends, The Beemaster (come to think of it, why do Fosco and his friends have aliases that sound like supervillains? Count Fosco, The Beemaster, Oz... It's like a whole Legion of Doom thing...)--but anyway, The Beemaster has questioned whether relying on the courts to overturn a ballot initiative is a subversion of democracy. I have to disagree; in fact, I think court review of these kinds of things is actually one of the best features of our system of democracy because it protects the rights of minorities from whims of majorities.

Think about it. The state of Utah is 62% Mormon. That pretty much means that, if Utah allows its state constitution to be revised by a pure majority vote (like CA), the Mormons could decide to do anything they wanted to the non-Mormons. They could revoke suffrage, legalize discrimination, even require non-Mormons to wear special underwear (how ridiculous!). (Disclaimer: I don't know if the Utah constitution can be altered by a majority vote; but that doesn't change our thought experiment).

But, you say, that would never happen because the courts would prevent it (based on either the US or State constitution). Exactly.

Actually, we could even consider this in a CA context. Prop H8 passed with about 5 million votes (approx. 1/7 of the population of CA). Now there are lots of things I bet I could get 5 million Californians to vote for (especially if I had millions of dollars in Mormo cash to help me run a misleading ad campaign). Remember how they had those troubles linked to Black muslims in Oakland (at Your Black Muslim Bakery--no, that's your Black Muslim Bakery, not mine)? I bet I could get 5 million Californians to require Black muslims across the state to register with their local police departments.

Or what about Scientologists? Heck, I bet if I had enough money (enough to outspend the Cruises), I could even get 5 million CA voters to force Scientologists to get freaky facial tattoos!

My point should be ridiculously clear by now: a democracy doesn't work unless there are courts to protect minorities from impositions by the majority. Now, we can argue all day about how the CA Constitution (or the US Constitution) should be interpreted when it comes to marriage equality. Or, to put it a different way, we can argue all day about whether marriage equality is a basic civil right. But I don't think it's worth arguing that this is a question for the courts--this is exactly a question for the courts.

Excuse me while I stumble off of my soapbox to make a gin & tonic.