It is the will of 52% of a voting public over 48% that changed the stance of California’s Attorney General Jerry Brown. He has filed suit to overturn the Proposition, writing that the courts have already said that the right to marry is protected as an “inalienable right.” Brown writes further that a “tyranny of the majority” would be established if a ballot initiative could to take away an inalienable right. This is something that the Constitution was designed to prevent.
The sponsors of Proposition 8 are championed by Kenneth Starr, dean of Pepperdine University's law school, and the former independent counsel who investigated President Bill Clinton. He argues that by upholding the initiative and invalidating 18,000 same-sex weddings performed before the election, the court would preserve the people's lawmaking powers. "Proposition 8's brevity is matched by its clarity,” Starr wrote. “There are no conditional clauses, exceptions, exemptions or exclusions." He would know since he was one of its authors.
Although I am not a lawyer, it occurs to me that there is also the pesky matter of ex post facto law; also known as retroactive law, and prohibited by the Constitution. The American Heritage New Dictionary of Cultural Literacy, Third Edition, defines an ex post facto law as, “A law that makes illegal an act that was legal when committed." In the case of Proposition 8, same-sex marriages may no longer be performed, at least for now. However, to invalidate marriages performed while they were legal makes the Proposition an ex post facto law.
The new bigotry has plenty of articulate spokespeople to espouse its specious cause. I would be interested to know what they think about repealing laws that prohibited marriages between blacks and whites. But that is the old bigotry.