Oliver Wendell Holmes, Jr. an acclaimed American jurist who served on the Supreme Court of the United States in the early part of the 20th century once remarked that, “a Constitution is not intended to embody a particular economic theory.” (see dissent in Lochner) He may as well have been discussing the notion that a constitution should neither reflect a particular set of morals.
The Constitution of the United States or any constitution is more than a document, it is more than just text. It embodies a spirit of law and an way of government. The Constitution of the United States has survived more than 200 years, not because people are beholden to a textual reading, but because people have been able to interpret and adjust the ideals in the Constitution to reflect contemporary life. The framers would certainly not have anticipated the growth of worldwide communications nor the use of the telephone, but these are issues that we have been forced to deal with in daily life, that the government has been forced to regulate, and the courts have been forced to interpret.
Proposition 8 is an attempt to force a particular type of morality onto the California people. Attempting to modify the California Constitution will not magically allow the prohibition of same-sex marriage to stand up to a test against the Equal Protection Clause of the California Constitution and/or that of the United States Constitution and it is embarrassing that people are willing to mask an abridgment of rights with the logic of moral turpitude or even worse, an appeal to “tradition”.