California Attorney General Jerry Brown makes a good point:
“There are certain rights that are not to be subject to popular votes, otherwise they are not fundamental rights,” Brown said in an interview. “If every fundamental liberty can be stripped away by a majority vote, then it’s not a fundamental liberty.”
And that goes straight to the heart of all the complaining from Proposition 8 supporters. You can whine all you want that “the will of the people” must be acknowledged, but when you establish that “the people” can exert their “will” to deny rights to some members of the population simply on the grounds of a vaguely asserted moral approbation, together with some alarmist pseudo-history, then you are well on your way down a pretty frightening path. The Germans can tell you where it may lead.
Is civil marriage really a fundamental right, though?
I would say so. If the system of civil law is going to include marriage as a way to recognize people’s freely chosen domestic relations, which are definitely expressions of a fundamental right, then the administration of civil marriage needs to reflect that.