On November 4th, this nation witnessed a landmark election.  Perhaps, unthinkable before that amazing Tuesday, this nation – indeed, the entire world – will witness the inauguration of an African-American as President of the United States of America.  This Election Day resulted in another landmark moment as well.  For the first time, one of Ward Connerly’s statewide anti-affirmative action initiatives failed at the ballot box.  Voters in Colorado rejected proposed Amendment 46.  Overall, this Election Day ushered in a new era of progress for the cause of racial justice, as racial barriers thought previously impenetrable went down.

Yet, progress was not the order of the day entirely.  In California and in other states around the country, voters passed initiatives denying marriage equality to same-sex couples.  The vote in support of Proposition 8 in California came after the California Supreme Court in a landmark decision ruled that denying same-sex couples the right to marry violated the State’s guarantee of equal protection.  As a result, if allowed to take effect, Proposition 8 would deny to a minority what California’s highest court had already declared to be a fundamental constitutional right.

In response, LDF has joined with four other civil rights organizations, the Asian Pacific American Legal Center, the Mexican American Legal Defense and Educational Fund, the Equal Justice Society, and the California NAACP to stop Proposition 8 from going into effect.  This case is not simply about gay and lesbian equality.  In holding that antigay discrimination is entitled to the same strict scrutiny that discrimination based upon race or sex provokes, the California Supreme Court placed attempts to deprive gay people of their constitutional rights and attempts to take rights away from women or people of color on the same footing.  A finding that suspect classes of citizens can be selectively oppressed through the initiative process would jeopardize the rights of every member of a historically disfavored community in the State of California.  Despite the progress of recent years, LDF and these four groups still carry a sober awareness of the discrimination and oppression that simple majorities sometimes direct against the communities we represent.  We therefore ask the Supreme Court to adopt the rule that the discriminatory elimination of a fundamental right from a group defined by a suspect classification is the type of fundamental change to the California Constitution requiring approval by a super-majority of the legislature or a constitutional convention before such a measure is placed before the voters.  Because Proposition 8 did not meet these constitutional prerequisites, the Supreme Court should refuse to enforce it.

The entire purpose behind the constitutional principle of equal protection would be subverted if the constitutional protection of unpopular minorities were subject to simple majority rule.  It is the job of the judiciary to prevent majority sentiment from oppressing historically disfavored minority groups — a job that is all the more urgent when the selective discrimination involves fundamental rights.  If there is one constitutional principle that must be protected from the constant threat of alteration by a simple majority, it is the principle of equal protection that aims to protect disfavored minority groups from oppression.

It is this basic principle of fairness that has resulted in the type of change in this nation from its founding to today that made the election of Barack Obama possible.