On August the 4th it was widely reported that Prop 8 banning same sex marriage in California had been ruled unconstitutional by court.
"U.S. District Chief Judge Vaughn R. Walker, in a 136-page ruling, said California 'has no interest in differentiating between same-sex and opposite-sex unions.'
'The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-
sex couples' Walker wrote." (1)
To avoid any kind of missunderstanding, I'll state here and loud that I AM PROFOUNDLY GLAD OF THIS RULING. I think no one should be denied any right because of sex orientation, as stated in the US constitution (and many others throughout the world).
But I also don't like what this ruling means in terms of the 'rules of politics' (or I'd rather say, 'rules of democracy'). I'll leave to experts the discussion of whether Judge R.Walker is right or lawful, so please consider this opinions aside from the rightneousness of it. In fact, let's say it is 100% correct. Let's suppose the Supreme Court will hold it. In this hypothesis, what has been said is that there's a decision point which is more important than a popular vote. And that's a dangerous thing in a country that praises itself ad nauseam of being the most free and democratic in the world.
OK, Constitution is above all laws in the US. And, also in the US, some matters of political discussion are considered so important that cannot be ruled by the people's representatives (aka Congress) and have to be decided by a universal vote. That's the process Prop 8 went through; and through it the people of California, in a democratic and uncontested way (by uncontested I mean that the voting was free and universal and was not challenged as biased in any way) decided that it should become law.
How come a sole individual (judge R. Walker) can rule that even though people have voted that law, it shall not be enforced, whatever the argument? The argument, in essence, is that it is inconstitutional and as such, illegal. Well, the constition is a document accepted by all US citizens also in a democratic way. I'm quoting the Wikipedia here, but a similar quote could be extracted from any text book across the states: "The Constitution was adopted on September 17, 1787, by the Constitutional Convention in Philadelphia, Pennsylvania, and ratified by conventions in each U.S. state in the name of 'The People'" (2)
Thus, if 'the people' (the people of California, in this case) have agreed to a law contradictory to another law also agreed by 'the people', no one else than 'the people' should be able to try and fix the wreck. And, from my point of view, there's only three viable options from this point on (none of which will happen, but still, I fancy the 'political exercise' of putting those together; because I would like to see this fixed in a proper way. And by proper way I mean fixed by those who broke it: 'the people').
1) Call a new and inmediate vote in California on Prop 8. Now people have been lectured by a judge on what is Constitutional on this matter, maybe they have changed their minds. In case they haven't (or we want to consider they were smart enough the first time around) then two new options come to mind.
2) The Constitution should be ammended, so as to fit the new wishes of the people of California. I don't know exactly which parts of it or how deeply (again, I don't want this to become a law technical paper; nor do I know enough on the matter as to do it). This would 'break the tie', probably.
3) As a last option, 'the people' of California should be given a vote of choice. If none of the above options suffice, that decision would be between staying as a part of the US and dropping Prop 8; or upholding Prop 8 and finding a new way of being part of the US without fully embracing the Constitution. Or not being part of the US at all.
I'm being too dramatic on purpose, remember this is a mere exercise. But I really think that the authorities should explore ways to make this again a choice of the people; of getting out of this mess without having a judge or a court override a popular vote. Feet on earth, probably a more realistic way would be a resolution from the California congress and senate (this is, the representatives of 'the people' of California) vote a joint resolution accepting the judge amendment. Now or when the Supreme Court settles the issue, if things are going that far. Not ideal, but it would formally put a good end to this. Not an individual, but 'the people' (their representatives in their name) saying "Sorry, we messed up, now we've been explained the consecuences in full we no longer want this thing we said we wanted in the first time". That's the only (democratic) way out. Or else, we are accepting that in democracy there is something more important than the voice of the people.
Democracy is a political form of government where governing power is derived from the people, either by direct referendum (direct democracy) or by means of elected representatives of the people (representative democracy). (3)
(1) Via LA Times, http://articles.latimes.com/2010/aug/04/local/la-mew-prop-8-10042010
(2) Via Wikipedia, http://en.wikipedia.org/wiki/United_States_Constitution
(3) Via Wikipedia, http://en.wikipedia.org/wiki/Democracy