Never before has the Court allowed a fundamental right to be voted away from a targeted minority. Never before has the Court taken the invitation of a lawyer, such as Prop 8's Ken Starr, to set a precedent that, as Starr repeatedly conceded, would put no state constitutional limitation on a future majority's ability to vote away protections against race or sex discrimination or cherished freedoms such as speech, worship, or, yes, the freedom to marry — the "essence" of which, the California Supreme Court explained in 1948 when it became the first court in the U.S. with the courage to strike down race restrictions on marriage, is the right "to join in marriage with the person of one's choice," the person who to you may be "irreplaceable." Imagine what California and our country would look like today had that court flinched in the face of the 90% disapproval of the then-majority. Imagine what the Constitution would look like if a mere majority could always cement inequality or a selective denial of fundamental rights into it, without even the procedural protection of the deliberative revision process the people themselves set forth.....It would be tragic if they caved in and threw the minority to the mob.
At various civil rights moments in American history, the courts' vital role in enforcing equal protection, and judges themselves, have come under tremendous pressure. Recall, for instance, the "Impeach Earl Warren" billboards following Brown v. Board of Education, the vitriol against the California Supreme Court when it had to strike down a 1964 constitutional change that undermined protections against race-discrimination, and the Rovian campaign of intimidation waged against so-called "activist judges" these past 8 Bush years. Its shining moment in standing up against such intimidation, in addition to its right result on marriage and equal citizenship for lesbian and gay Americans, was why I and millions cheered the Court's courage and clarity in 2008.
Remember, Ken Starr says no rights are inalienable. They may come for the gays today. Who will they come for tomorrow?