In 1948, 19 years before the landmark Supreme Court case of Loving v. Virginia, the California Supreme court struck down laws with prohibited interracial marriage.

Why did it do this? These laws were in place by popular vote. They were the will of the people. People argued that no one was being denied any rights. Everyone had the same right to marry within his or her race. Religious proponents supported the laws with Bible passages such as Exodus 34:10-16 which forbade the Israelites from marring people of other tribes.

To understand why this happened, you have to understand the roles of the Constitution, the courts, and the laws passed by legislature. First of all, the Constitution is intended to be  document which guarantees rights, and not just popular ones. It is the Constitution that allows people the freedom of speech to pray to unpopular gods, to say unpopular things. Only once has an amendment made it to the U.S. Constitution to eliminate a right. For 13 years the 19th amendment made drinking illegal. We quickly understood the folly and amended its Constitution again to strike down the 19th amendment.

The legislature does not promote unpopular laws. It cannot. Congressmen and Congress women are voted in by popular vote. They are supposed to vote as the people vote. If they don’t, they are not re-elected. That is why slavery did end from the legislature, why segregation was not ended by the legislature, and why bans on interracial marriage were not ended by the legislature.

Basically, if you are a minority, Congress doesn’t care about you or your rights. You are the few. You are the unpopular. Your rights are not the concern of the “will of the people.”

This is where the Courts come in. Their job is to uphold the rights set for by the Constitution. Sometimes the “will of the people” passes laws, which the Court determines to illegally deny rights (usually to minorities). California law grants “protected classes.” These are areas where you cannot discriminate: gender, race, religion, ability, or sexual orientation. Discriminate means to be able to tell the difference. Under the eyes of the law, there can be no difference between a white person and black person. The Courts cannot tell the difference, cannot discriminate based on race.

This is why the California courts ended bans on interracial marriage. How can the courts enforce people marrying only within their race, if they cannot discriminate based on it? When prop 22 passed 6 years ago which made same-sex marriages illegal, the Courts had to rule as they had done in 1947. They cannot enforce a law that says you have to marry outside of your gender. They cannot enforce a law that makes a differentiation between straight people and gay people. In 1947, the California Supreme Court ruled:

Marriage is thus something more than a civil contract subject to regulation by the state; it is a fundamental right of free men. There can be no prohibition of marriage except for an important social objective and by reasonable means. No law within the broad areas of state interest may be unreasonably discriminatory or arbitrary. The state’s interest in public education, for example, does not empower the Legislature to compel school children to receive instruction from public teachers only, for it would thereby take away the right of parents to “direct the upbringing and education of children under their control.”

So with Prop 8 passing. Anti-gay activist have once again quoted phrases from the Bible to justify their stance. Just as people in the past said interracial marriage would harm children, make them confused. Interracial children would not know their place in the world…because it was important the races knew their places. Prop-8 supports said if children came to know that gay people could have love too, they would be confused and harmed. Finally, they said that it is the “will of the people” and how dare 7 judges defy that?

I ask, how dare they not? The will of the people cannot vote away rights. The will of the people cannot bring back segregation into law, or slavery into effect. The California Constitution was NOT amended to allow discrimination under the law for gender nor sexual orientation. The new law which states that people must marry outside of their gender IS a civil rights issue. Historically, courts are the only places where unpopular rights for minorities are upheld…especially when the will of the people falters to uphold the American ideal of equality.