Could California's Supreme Court have done anything else on May 26?
It would have pleased me dearly if they had, but we've tied their hands with a political system that strikes me as seriously flawed.
California has crafted a fourth branch of government for itself - in addition to the executive, legislative and judicial branches, Californians (and I now r one) have established law by initiative and simple majority vote - it's the law now, and the judicial branch of the government is charged with its interpretation and its defense, even when said law might be distasteful and discriminatory.
That the Supreme Court originally declared unconstitutional the ban on gay marriage reveals where the court is on the matter, but the passage of Prop 8 changed everything.
The 6 to 1 vote to uphold the initiative the only one they could do. Their unanimous vote to uphold the 18,000 marriages was equally important - for those 18,000 marriages occurred under the law - that there are now 18,000 GLBT marriages in California, with all the rights that pertain thereto, will surely raise a host of complicated questions, made even more complex by what other states have recently done.
But for me, there's a large issue hidden here - it's the proposition process itself.
As someone new to California for only 22 months, I had heard about propositions in the news, but had little sense of how the process functions - now I know, and I think it stinks! I think it's unconstitutional! It subverts the very character of American government - we are not a pure republic - we are a representative democracy, with elected officials to do the work of government on our behalf.
Sometimes they fail; sometimes they succeed, but driving the State of California with propositions is a formula for disaster, turning the ballot box into a hyper-politicized and thoughtless means of crafting law, subject to the one who's likely to spend the most money!
Lets do away with the three remaining branches of government - let's do it all by proposition ... or, let's admit how disastrous the process is, and return government to the proper means of a governor, a legislature and the courts.
Having said that, I'm utterly disappointed in the hardship now imposed again upon the GLBT community - and I'm equally saddened by my own denomination, the Presbyterian Church (USA) which again, though by a much closer vote, denied ordination to practicing gays and lesbians.
And should the measure again come before the California voter, likely in 2010, I will join in marches and meetings, I will write and speak on behalf of the GLBT community and marriage equality, I will sport my bumper stickers and do all that I can to support the implementation of marriage equality for all Californians.
And I will also add my voice of dissent to how California crafts its laws. What we have seen in Iowa and Vermont and other states is how it should be done - even now in Nevada where the governor vetoed a marriage rights bill.
However I might feel personally, this is how America works, and works best, and though it be sometimes sluggish and even contrary to its own identity, we work through three branches of government - they initiate the law on our behalf. If we don't like it, we vote 'em out. But to write law by initiative and simple majority vote cripples the other three branches of government.
The current system has become a political playground and the victim of big money.
We can do better, and though the proposition process has long been a part of California history (1911), and though it has served well a variety of causes, I really wonder if this is the best way to manage our affairs.
The following quote says it well:
Governor Hiram Johnson championed the initiative process in 1911 because he wanted a grass-roots way for Californians to act when politicians refuse to or to overturn laws the Legislature passed.
It typically takes $4 million just to gather the required hundreds of thousands of valid signatures of a petition -- millions more to get voters to pass or reject it.
Professor Floyd Feeney is an expert on California's initiative process who says Governor Johnson would be shaking his head today.
"He would disliked the fact that money plays such an important role in getting things on the ballot today. Volunteers have a lesser role than they used to," said Professor Feeney, J.D.
Initiatives are risky. Only 32 percent of them have passed since 1912, including the famous Proposition 13, which limited how much property taxes could go up in California.
But even supporters of the initiative process acknowledge the downside.
Opponents to Proposition 2, the farm animal initiative, say it's hard to fix the flaws within poorly written measures.
"You do not get the opportunity for those refinements that may be necessary as time goes on. Almost every body of law has unintended consequences," said Richard Matteis from the California Farm Bureau.
Unless the initiative process is changed, California voters can expect long ballots every election.