Amendment vs. Revision of the California Constitution

At Volokh, Dale Carpenter offers a thoughtful post on the distinction between amendment and revision of California's constitution, and whether Proposition 8 should properly be categorized as an amendment (requiring simple majority vote) or a revision (requiring "approval by two-thirds of each state house, followed by a majority vote"). Without having looked deeply at the issue, I suspect that the distinction was supposed to offer a procedural safeguard, but Carpenter raises interesting points about stripping away people's constitutional rights by majority vote.

Personally, I can't help but wonder if the amendment process itself should be amended (or is it revised). I recognize that it's a double-edged sword - if you make it harder for the people to amend the constitution, you effectively leave that power in the hands of legislatures who may be slow or reluctant to honor the wishes of a clear majority of the population on subjects like medical marijuana. But you also get bad policy, and it seems particularly bad tax policy, enshrined in the constitution, with the likely result that you will have financially mandated tax inequalities and budget problems. And you raise questions of whether matters arguably best addressed by legislation should be enshrined in a state constitution.

That is, you may try to fix a cyclical problem (e.g., budgeting issues) and end up creating a structural problem (a constitution that prevents the government from obtaining the tax revenues it needs to fulfill basic functions, or enshrining discriminatory tax policy that may deter immigration into a state or unduly burden a subset of state residents).

But What If God Makes You Infertile?

The New York Times has a rather vapid piece on same-sex marriage, Using Biology, Not Religion, to Argue Against Same-Sex Marriage. The authors present the views of a Christian couple who contend that their opposition to same-sex marriage arises from biology, not their religious beliefs:

“It takes a man and a woman to create children and thus create a family,” Mrs. Galloway, 60, told a legislative panel in Connecticut last year as it was considering a bill to legalize same-sex marriage.

Except....

For the Galloways, the notion that same-sex couples should not marry because they cannot have children is complicated by their own story. They married nearly 17 years ago, and tried to have children. When they couldn’t conceive, they became foster parents in the hope of adopting.

If the argument truly is that biology dictates the answer - couples who can't have children shouldn't be allowed to marry - why should the Galloways be permitted to remain married? Why should any infertile person be allowed to marry? If the solution to God's will is adoption, as the Galloways suggest at least in relation to their own inability to bear children, how is their marriage different from that of a same-sex couple that adopts?

What of a fertile couple that chooses not to have children, or an infertile couple with no intention of adopting - should they be allowed to marry? How does "biology" justify their marriage?

It's sleight of hand - the argument is quietly shifted from biology - the capacity to reproduce - to "gender roles":

The notion that gender roles are unimportant in raising children is “bunk,” added Mrs. Galloway. “It is not an accident that it takes a man and a woman coming together to create a child,” she said.

Certainly, it's not an "accident" that species that reproduce sexually engage in sexual reproduction. That's a given. But what do we make of "biology" when mommy mantis bites off daddy's head or mommy wolf spider eats daddy. Even if we stick to humans, the mere fact that a species engages in sexual reproduction does not necessarily require that the father have any involvement in the child's life past the point of conception. And that's true even when parents have the best of intentions:

Mr. Galloway, whose father died when he was 3, said being raised solely by women - his mother and his aunts - hindered his development and altered his sense of self-worth.

The Galloway's argument is premised in sociology, not biology. And even in that context, its based upon personal experience and opinion, not empirical data.

This emphasis on biology roughly parallels the idea that "if we call it 'intelligent design' it's not really creationism." When the religious argument doesn't gain traction, spin it into something you can try to rebrand as science, even if there's no actual science involved.