The California Supreme Court will hear arguments tomorrow before deciding what to do about Prop 8—declare it unconstitutional and toss the results of the November vote?—and then deciding what to do about the 18,000 same-sex couples who married in California before Prop 8 was approved. Let 'em stay married? Divorce 'em en masse? The court will have 90 days to issue a ruling, but the LA Times reports that the decision could come as soon as tomorrow afternoon. Both houses of the California state legislature have passed resolutions calling on the court to toss Prop 8—as the court has done in the past:
[State Sen. Mark] Leno compared passage of Proposition 8 with public reaction in 1964 to a new state fair-housing law. Voters tried to reverse the law by approving an initiative that gave people a right to discriminate against racial minorities when renting or selling a home.
The state Supreme Court in 1966 struck down the initiative, which had been endorsed by aspiring gubernatorial candidate Ronald Reagan.
Yes, the court would be overturning the will of the people if it struck down Prop 8--but sometimes the people are wrong, as was the case in 1966, and the courts are there in part to protect the rights of minorities from the "will of the people." The Bill of Rights was crafted to prevent majorities from ruling in all cases. And majorities in the United States once willed that women be denied the vote and that interracial marriage be banned and that blacks were property and that the Japanese should be interned for the duration of WWII and on and on. When it comes to minority rights majorities of Americans have been wrong about so much that a greater degree of scrutiny should fall on any policy that enjoys majority support in this country.
The hearing starts tomorrow at 9 AM and goes to noon. It'll be streamed live here.