As America debated abolition, Christians were on both sides.
The pro-slavery Christians had the easier argument because the Bible supported their position. The abolitionists had to make the more difficult argument that slavery was just wrong regardless of what the Bible says.
In the ensuing decades, the abolitionist's argument has become so completely integrated into the collective modern psyche, that scarcely any American today believes that God wants some people to own other people.
Yet there remains plenty of Christians who believe the Bible can't be wrong. Candidly, it amuses me when a black Christian makes the "literal Bible" argument. A friend of mine used to drop by and talk religion. She is a member of one of those churches. One day I asked her what her church's position on slavery was, since slavery is endorsed in the infallible Bible. She said she couldn't answer, but would ask her pastor. She quit dropping by. Oops.
The current iteration of this debate regards marriage equality. Christians are found on both sides. Once again, the anti-equality Christians use the Bible to support their position, and their churches have decided that their doctrines should govern not only the members of their congregations, but the rest of us as well.
Unfortunately, it's the nature of all individuals and institutions that presume to "know what's best" to continuously try to impose their ways on the rest of us who imagine that we know how to manage our own affairs. The First Amendment and the principle of Separation of Church & State are supposed to shield us from being governed by clergy on behalf of a dogma.
The arguments against marriage equality are, in my experience, almost exclusively religious. Because of that, they cannot be imposed or enforced by the state. The Establishment Clause of the First Amendment says the state shall not promote any religious belief, or endorse any religious position. The state may, for example, ban the consumption of alcoholic beverages for health and safety reasons, but not on the basis that the Koran forbids it. It may criminalize murder on the basis that it harms society, but not on the basis that the Torah forbids it. It may void certain marriages for want of legal capacity, but not on the basis that the Bible forbids it.
Further, the state cannot enforce the religious beliefs of the majority upon the minority. To do so would make the state the enforcement arm of the religious majority.
Ken Starr, on behalf of the anti-equality forces, must recognize that such religious arguments that endorse discrimination aren't going to work on California Supreme Court justices. He's framing the argument thus:
"What is being argued before the California Supreme Court is: Do the people have power under the California constitution to amend the constitution so as to overturn a specific decision of the California Supreme Court? It's a very important but nonetheless different issue than the underlying constitutional issue of the right to marry someone of the same sex."
Starr inquires, "is there a constitutional right to marry someone of the same sex?"
Not specifically. Nor is there a specific constitutional right to marry a lefty. The right to marry generally is fundamental (not in the Constitution), and Loving v. Virginia said that the right meant the ability to marry the partner of one's choice, not to be limited by physical characteristic.
Starr inquires, "can the plebiscite overturn the Supreme Court?"
Where the court is not making a determination of constitutionality, perhaps. The Supreme Court's purpose is to interpret the constitution after poring over detailed adversarial briefs, doing independent research, listening oral arguments, and engaging in debate with other jurists. Having the public read a few sentences and vote based on how they "feel" is no substitute for an appellate court's process. Frankly, it's an insult to the judicial system, and not a question that the justices are likely to answer in the affirmative.
They should lose. Doesn't mean that they will.
