California courts agreed to hear a challenge to Proposition 8 which banned same-sex marriage. The question before the court asks if Proposition 8 is an amendment to California's Constitution or a revision. San Francisco Mayor Gavin Newsom told CNN's Anderson Cooper that if Proposition 8 is a revision to the Constitution it would mean that the courts no longer had a role in determining if the rights of minorities had been violated.
"Should we go in front of the voters every time there is an adjudication in the courts that we don't like and submit the rights of minorities to the whims of the majority, based upon the morality of the day?" asked Newsom. "That's what's happened here in California."
I mean, this is an interesting point. Look, if we were having this conversation in 1967, we would have had a U.S. Supreme Court, the loving court, that unanimously decided to get rid of all of those laws in the remaining 16 states that denied interracial marriage.
If we had gone to the voters, almost every public opinion poll showed that the overwhelming majority of voters would have overturned that court decision
Newsom argued, "Well, what's next? I mean, now, if this is the basis of principle, what other rights should we take away? And is the court powerless in each and every case when the voters by a majority decide to change the constitution, again based upon the issue of the day?"
COOPER: Protesters this past weekend against California's Proposition 8 banning same-sex marriage. There was a major new development today. The state's highest court said the initiative can be enforced. They're not going to try to delay it. But at the same time, the court agreed in March to hear arguments on its validity.
And they're going to focus on three questions: does Prop 8 revise the state's constitution instead of amending it? Does it also violate the state's constitution separation of powers doctrine, violating judges' ability to guarantee equal rights? And the court is going to try to decide what happens to the thousands of gay marriages that have already taken place.
MAYOR GAVIN NEWSOM, SAN FRANCISCO: Well, I mean, the question in front of the court now and the question that they're willing to adjudicate is the validity of Proposition 8. And the question really is this, Anderson: whether or not it's an amendment to the constitution in the state of California or it's a revision.
The court has, in nine previous occasions over the last 100 years, made a determination in three of those instances that amendments were, in fact, not amendments but actual revisions. We believe there is some continuity to those decisions, and that gives us confidence in the context of this one.
COOPER: But for something to be ruled a revision it has to be decided as a fundamental change in government structure. How is gay marriage, or overturning gay marriage, changing state government structure?
NEWSOM: Well, remember, something was legal in the state of California, as legal as my ability to get married to my wife. And that was simply stripped away and taken away by a simple majority vote. Leaving the courts with what?
If you change the law that's one thing; the courts adjudicate the constitutionality of that law. But if you change the constitution, what role does the court have now in terms of adjudicating whether or not that's constitutional?
COOPER: There's also the issue of whether or not -- basically, it boils down to who should be able to determine what is right for a group of people; the people or a judge.
NEWSOM: Yes. I mean, this is an interesting point. Look, if we were having this conversation in 1967, we would have had a U.S. Supreme Court, the loving court, that unanimously decided to get rid of all of those laws in the remaining 16 states that denied interracial marriage.
If we had gone to the voters, almost every public opinion poll showed that the overwhelming majority of voters would have overturned that court decision.
The question is, is that appropriate? Should we go in front of the voters every time there is an adjudication in the courts that we don't like and submit the rights of minorities to the whims of the majority, based upon the morality of the day? That's what's happened here in California.
