California Supreme Court Upholds Prop. 8 Gay Marriage Ban, But Allows Current Gay Marriages To Stand

marriageIn a six-to-one decision, the California Supreme Court upheld the state’s ban on gay marriage, the Proposition 8 referendum voters approved last November. The court ruled that Prop. 8 “constitutes a permissible constitutional amendment (rather than an impermissible constitutional revision).” However, the court declared that the 18,000 same-sex marriages conducted last summer, prior to the passage of the proposition, would remain legal and recognized.

Importantly, though the court upheld the ban on the use of the term “marriage” by same-sex couples, it reaffirmed the fundamental constitutional rights of gay couples (p. 7):

[T]he measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.

Indeed, the bulk of the court’s May 2008 ruling that originally legalized gay marriage — which emphasized “respect and dignity” — stands. The LA Times noted that gay people in California will still enjoy greater rights than gay Americans elsewhere:

Sexual orientation will continue to receive the strongest constitutional protection possible when California courts consider cases of alleged discrimination. The California Supreme Court is the only state high court in the nation to have elevated sexual orientation to the status of race and gender in weighing discrimination claims.

The LA Times pointed out that the case for overturning Prop 8 was always a “long shot,” noting that the gay rights’ lawyers “had no solid legal precedent on their side, and some of the court’s earlier holdings on constitutional revisions mildly undercut their arguments.”

The court’s majority concluded “that if there is to be a change to the state constitutional rule embodied in that measure, it must ‘find its expression at the ballot box.'” The ruling virtually ensures such a fight, and it is already getting started


In a dissenting opinion, Justice Carlos Moreno wrote that the decision “weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority.” Moreno also rejected the majority’s claim that banning full marriage rights was a “narrow” civil rights restriction for gay couples. Regardless how narrow the restriction, he argued, the ruling violates these couples’ right to equal protection:

Denying the designation of marriage to same-sex couples cannot fairly be described as a “narrow” or “limited” exception to the requirement of equal protection; the passionate public debate over whether same-sex couples should be allowed to marry, even in a state that offers largely equivalent substantive rights through the alternative of domestic partnership, belies such a description. […]

But even a narrow and limited exception to the promise of full equality strikes at the core of, and thus fundamentally alters, the guarantee of equal treatment that has pervaded the California Constitution since 1849. Promising equal treatment to some is fundamentally different from promising equal treatment to all. Promising treatment that is almost equal is fundamentally different from ensuring truly equal treatment. Granting a disfavored minority only some of the rights enjoyed by the majority is fundamentally different from recognizing, as a constitutional imperative, that they must be granted all of those rights. (p. 155-7)

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,Noting that the number of states allowing gay marriage has more than doubled since November, the Center for American Progress’s Winnie Stachelberg said, “The California Supreme Court’s decision to uphold Proposition 8 is disappointing, but it should not distract us from the progress that is being made toward marriage equality.”

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