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Tuesday, May 26, 2009

Split Decision on Prop. 8

The California Supreme Court has issued a split ruling, upholding Proposition 8 but also upholding the validity of gay marriages which took place prior to passage of Prop. 8.

Proposition 8 enshrined in the California Constitution the traditional definition of marriage, providing that only marriages between one man and one woman shall be recognized. Prop. 8 was a reaction to a prior California Supreme Court decision which ruled that denying gay couples the right to marry violated the California Constitution. The passage of Prop. 8 gave rise to boycotts against supporters of Prop. 8, attacks on Mormons, and a Day Without A Gay protest which never gathered much momentum.

The Court rejected the notion that the People, through Constitutional amendment, could not restrict the right to marry:

In analyzing the constitutional challenges presently before us, we first explain that the provision added to the California Constitution by Proposition 8, when considered in light of the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757 (which preceded the adoption of Proposition 8), properly must be understood as having a considerably narrower scope and more limited effect than suggested by petitioners in the cases before us. Contrary to petitioners’ assertion, Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right of privacy and due process that was analyzed in the majority opinion in the Marriage Cases — that is, the constitutional right of same-sex couples to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage” (Marriage Cases, supra, 43 Cal.4th at p. 829). Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion. Instead, the 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.
In light of the above analysis, the Court upheld Prop. 8 as a proper Amendment of the Constitution, rather than a "revision" which would have required additional procedural steps:

Taking into consideration the actual limited effect of Proposition 8 upon the preexisting state constitutional right of privacy and due process and upon the guarantee of equal protection of the laws, and after comparing this initiative measure to the many other constitutional changes that have been reviewed and evaluated in numerous prior decisions of this court, we conclude Proposition 8 constitutes a constitutional amendment rather than a constitutional revision....

Petitioners contend, however, that even if Proposition 8 does not affect the governmental plan or framework established by the state Constitution, the measure nonetheless should be considered to be a revision because it conflicts with an assertedly fundamental constitutional principle that protects a minority group from having its constitutional rights diminished in any respect by majority vote. Petitioners, however, cannot point to any authority supporting their claim that under the California Constitution, a constitutional amendment — proposed and adopted by a majority of voters through the initiative process — cannot diminish in any respect the content of a state constitutional right as that right has been interpreted in a judicial decision.

The Court also rejected the substantive argument of the Attorney General, who unlike other Petitioners did not rely on the procedural argument that the "revision" procedure should have been followed:

In addition, no authority supports the Attorney General’s claim that a constitutional amendment adopted through the constitutionally prescribed procedure is invalid simply because the amendment affects a prior judicial interpretation of a right that the Constitution denominates “inalienable.” The natural-law jurisprudence reflected in passages from the few early judicial opinions relied upon by the Attorney General has been discredited for many years, and, in any event, no decision suggests that when a constitution has been explicitly amended to modify a constitutional right including a right identified in the Constitution as “inalienable”), the amendment may be found unconstitutional on the ground that it conflicts with some implicit or extraconstitutional limitation that is to be framed and enforced by the judiciary.
As to marriage which took place prior to the passage of Prop. 8, the Court ruled that Prop. 8 could not be applied retroactively, so such marriage were valid:

Finally, we consider whether Proposition 8 affects the validity of the marriages of same-sex couples that were performed prior to the adoption of Proposition 8. Applying well-established legal principles pertinent to the question whether a constitutional provision should be interpreted to apply prospectively or retroactively, we conclude that the new section cannot properly be interpreted to apply retroactively. Accordingly, the marriages of same-sex couples performed prior to the effective date of Proposition 8 remain valid and must continue to be recognized in this state.
What does it all mean? The issue of gay marriage in California will be left to the political process. Having intervened in that political process by finding a Constitutional right to gay marriage (by a one vote majority), the Supreme Court Justices have had the issue taken away from them. Supporters of gay marriage will have to win in the court of public opinion. It will be interesting to see if supporters of gay marriage go the way of those who, in the aftermath of Prop. 8, engaged in boycotts and intimidation, or will argue the gay marriage case on the merits. In any event, the next electoral cycle should be interesting.

Related: See discussion at Gay Patriot, arguing that the Court reached the right decision, and discussing what comes next. JammieWearingFool is worried about whether Perez Hilton should be on suicide watch, and quotes in his post from comments at the San Francisco Chronicle.

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  1. Professor Jacobson, I think you're inaccurate in saying that the court determined that the people could restrict same-sex couples' right to marry. In reading the decision, they actually took great pains to repeatedly assert that that *wasn't* what they were doing and wasn't what the scope of Prop 8 was at all. People being married is protected by the consitutional right to privacy; it was only the official state designation of "marriage" for the resulting union that the court allowed the constitutional amendment to limit. It was because they gave the amendment such a narrow scope that they were able to make the decisions that they did.

    (note: this is just my opinion as a lay-person)

  2. mmm, the fundamentally dishonest thing in the ruling is this. gay marriage was never the law in cali. the supreme court of cali created a constitutional right out of thin air, and they were slapped back by the people with proposition 8.

    But if the original case was "wrongly decided" then the only right answer is to nullify the gay marriages that occurred between their lawless decision and the passage of prop 8. which is not what they did.