One of the arguments that the whining Christianists such as Maggie Gallagher and Tony Perkins are using to condemn Judge Walker's ruling striking down proposition 8 is that it "overturns the will of the majority." In their view - unless, of course, it cut against their theocratic agenda, majority mob rule should prevail. Taken literally and to its logical conclusion, this argument would allow a majority of voters to strip away the rights of any minority group it chose to target.
In making this argument - as I have noted before is all too typical - the anti-gay forces are ignoring an inconvenient piece of history. In this instance it is the decision of the U. S. Supreme Court in Reitman v. Mulkey, 387 U.S. 369 (1967), which likewise arose from a California constitutional amendment that would have allowed property owners to refuse to rent or sell property to blacks.
Here's the historical background from the case followed by the Court's ruling:
The California Legislature, during the period 1959-1963, enacted several statutes regulating racial discrimination in housing. In 1964, pursuant to an initiative and referendum, Art. I, § 26, was added to the state constitution. It provided in part that neither the State nor any agency thereof "shall deny, limit or abridge, directly or indirectly, the right of any person, who is willing or desires to sell, lease or rent any part or all of his real property, to decline to sell, lease or rent such property to such person or persons as he, in his absolute discretion, chooses."
The California Supreme Court held that Art. I, § 26, was designed to overturn state laws that bore on the right of private persons to discriminate, that it invalidly involved the State in racial discrimination in the housing market, and that it changed the situation from one in which discriminatory practices were restricted to one where they are "encouraged," within the meaning of this Court's decisions. The court concluded that Art. I, § 26, unconstitutionally involves the State in racial discrimination, and is therefore invalid under the Equal Protection Clause of the Fourteenth Amendment.
Confronted with this set of facts - which certainly can be compared to the goals of Proposition 8 in terms of encouraging discrimination against gays and lesbians - the U.S. Supreme Court held in relevant part as follows:
Second, it [the California Supreme Court] held the intent of § 26 was to authorize private racial discriminations in the housing market, to repeal the Unruh and Rumford Acts, and to create a constitutional right to discriminate on racial grounds in the sale and leasing of real property. Hence, the court dealt with § 26 as though it expressly authorized and constitutionalized the private right to discriminate. Third, the court assessed the ultimate impact of § 26 in the California environment, and concluded that the section would encourage and significantly involve the State in private racial discrimination contrary to the Fourteenth Amendment.
The right to discriminate, including the right to discriminate on racial grounds, was now embodied in the State's basic charter, immune from legislative, executive, or judicial regulation at any level of the state government. Those practicing racial discriminations need no longer rely solely on their personal choice. They could now invoke express constitutional authority, free from censure or interference of any kind from official sources.
Here, the California court, armed as it was with the knowledge of the facts and circumstances concerning the passage and potential impact of § 26, and familiar with the milieu in which that provision would operate, has determined that the provision would involve the State in private racial discriminations to an unconstitutional degree. We accept this holding of the California court.
[T]he section [Sec. 26] will significantly encourage and involve the State in private discriminations. We have been presented with no persuasive considerations indicating that these judgments should be overturned.
Reitman when combined with the case law and facts cited by Judge Walker makes a strong case that the will of the majority does not trump the federal Constitution. For the U. S. Supreme Court to reverse Judge Walker's ruling in Perry v. Schwarzenegger would also require the Court to get around the clear ruling that discrimination cannot be made legal via an initiative derived amendment to a state constitution. Stated another way, the majority cannot strip away federal constitutional rights via state constitutional amendments.