Prop 8 upheld

The California Supreme Court has upheld last November’s vote that struck down gay marriage in the state, while voting to keep existing same-sex marriages legally intact.

The Supreme Court’s Web site has been jammed, but I was able to download the decision. You can read it here. It’s 185 pages long.

In the “irony” department, the court cites the Massachusetts Supreme Judicial Court several times in its decision. The SJC’s ruling a few years ago paved the way for same-sex marriage in the nation. In this case, the California court ruled that the effort to bring the referendum to the voters was appropriate and legal.

As illustrated by the decision of the Massachusetts Supreme Judicial Court in Schulman, supra, 850 N.E.2d 505, even under a state constitution that places significant limits on the initiative process, the people, through the initiative process, validly may propose an amendment to the state constitution that prospectively changes the substantive constitutional rule set forth in a judicial decision analogous to the majority opinion in our Marriage Cases, supra, 43 Cal.4th 757. Thus, although the Schulman decision does not speak directly to the amendment/revision issue, the Massachusetts court’s conclusion in that case demonstrates that, contrary to petitioners’ assertions in the present case, a measure such as Proposition 8 is not inconsistent with the commonly accepted scope of the initiative process.40

Here’s the “money quote” on preserving existing same-sex marriages in California:

A retroactive application of the initiative would disrupt thousands of actions taken in reliance on the Marriage Cases by these same-sex couples, their employers, their creditors, and many others, throwing property rights into disarray, destroying the legal interests and expectations of thousands of couples and their families, and potentially undermining the ability of citizens to plan their lives according to the law as it has been determined by this state’s highest court. By contrast, a retroactive application of Proposition 8 is not essential to serve the state’s current interest (as reflected in the adoption of Proposition 8) in preserving the traditional definition of marriage by restricting marriage to opposite-sex couples; that interest is honored by applying the measure prospectively and by having the traditional definition of marriage enshrined in the state Constitution where it can be altered only by a majority of California voters.

In a dissent, Justice Carlos R. Moreno wrote:

Proposition 8 represents an unprecedented instance of a majority of voters altering the meaning of the equal protection clause by modifying the California Constitution to require deprivation of a fundamental right on the basis of a suspect classification. The majority’s holding is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution.

“The crowd of largely gay marriage advocates outside the San Francisco courthouse started chanting ‘Shame on you. Shame on you’ the moment the decision was announced,” the Sacramento Bee reported.

The Los Angeles’ Times news blogger is answering questions about the ruling, though at this hour it appears more people are providing questions than the reporter is answers.

The San Francisco Chronicle, meanwhile, is running an excellent Twitter feed from protests in the city.

Since the California court’s hearing, three states have legalized same-sex marriage: Vermont, Maine, and Iowa. Bills in New York and New Jersey are pending. An effort at the Minnesota Legislature went nowhere.

  • Joanna

    I’m broken-hearted.

  • bsimon

    “I’m broken-hearted.”

    Its tough to be patient, but the ruling is likely only a temporary setback. What should be troubling to the proponents of Prop 8 is that the CA supremes failed to invalidate the existing marriages of same-sex couples in California. In other words, there are legally married same-sex couples in California, but the court has allowed a referendum to ban future/additional marriages by same sex couples. It is hard to see how this is legally defensible.

  • Joanna

    My reasonable head knows that you are right, and those 18,000 married same-sex couples are a wedge, but today my heart is sad because millions of people feel vindicated in their bigotry against me and my family.

  • JohnnyZoom

    >> It is hard to see how this is legally defensible.

    Well, it is defensible, as it was, er, defended, although in a quite contorted way which clearly left a lot of room for disagreement no matter what the outcome and corresponding rationale. This seems to fall under the “more trouble than it’s worth” department. (I am just waiting for the mandatory “activist judge” tirade…)

    >> vindicated in their bigotry against me and my family.

    I am sorry about your tribulations there. A sad fact about this case is that no matter what the outcome, it would have made some bigots quite vindicated, and by implication others steamed. Fortunately we can easily ignore the intellectual contribution to the legal issues from bigotry (a null set if there ever was one), and I am sure the process did. Unfortunately, it still leaves the real legal issues, which are quite contentious.

    It is a shame that bigotry can’t be legislated away, as much so because some might try anyway with dire unintended consequences as because it just, er, can’t.