California Court Upholds Prop 8
Washington Blade
By Chris Johnson
May 26, 2009
Marriages of 18,000 couples remain valid
In a decision that disheartened many supporters
of same-sex marriage, the California Supreme Court
on Tuesday upheld a state constitutional amendment
that ended access to marriage for gay couples in the
Golden State.
Justices decided that the amendment, known as
Proposition 8, would remain part of the state
constitution. They also determined that the measure
cannot be applied retroactively, though, so the
18,000 gay couples who wed in the state prior to
voter approval of the ban still have valid
marriages.
In the 6-1 decision written by Chief Justice Ron
George, the majority determined that Prop 8
"constitutes a permissible constitutional amendment"
and denied arguments supporters of same-sex marriage
advanced as reasons to invalidate the measure.
"Having determined that none of the
constitutional challenges to the adoption of
Proposition 8 have merit, we observe 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,'" George wrote.
Kate Kendell, executive director of the National
Center for Lesbian Rights, said in a statement that
the court decision "has undermined the central
principle that all people are entitled to equal
rights and has jeopardized every minority group in
California."
"No minority group should have to defend its
right to equality at the ballot, and the court
should not have permitted such a travesty of justice
to stand," she said.
But Tony Perkins, president of the conservative
Family Research Council said in a statement that
justices upheld democracy in their ruling.
"Even this widely-recognized liberal court
understands that overturning Proposition 8 would
represent a repudiation of the state Constitution it
is sworn to uphold," he said.
California Gov. Arnold Schwarzenegger (R) said in
a statement he would uphold the decision of the
court even though he believes "one day either the
people or courts will recognize gay marriage."
He added that court "made the right decision" by
keeping in place the 18,000 marriages that have
already taken place and encouraged those who wanted
to respond to the decision "to do so peacefully and
lawfully."
Geoff Kors, executive director of Equality
California, told the Blade on Tuesday that "the
court got it wrong" in its decision on Prop 8,
adding that "now it's up to all of us to get it
right."
"They made it clear we have to go back to the
voters and that's what we're prepared to do," he
said.
The ruling contrasts with another decision the
court made in May 2008, when justices ruled 4-3 that
gay couples had a right to marry under the state
constitution. Prop 8, which voters approved in
November by 52 percent, overturned that decision.
Chief Justice Ron George, Associate Justice Joyce
Kennard and Associate Justice Kathryn Werdegar, who
ruled in favor of plaintiffs in the marriage case,
joined with the three justices who were in the
minority last year to uphold Prop 8 in Tuesday's
majority opinion.
The White House had no immediate response to the
ruling. When asked to comment Tuesday after the
decision was released, Press Secretary Robert Gibbs
gave reporters at the daily briefing a short
response.
"I have not talked to the president about it," he
said. "I think the issues involved are ones that you
know where the president stands."
Court rejects Prop 8 arguments
Opponents of Prop 8 had argued that the amendment
should be invalidated because, under the California
constitution, the measure should be considered a
more substantial "revision" rather than a simpler
"amendment," thus requiring a two-thirds vote from
both chambers of the California Legislature for
approval.
But the court rejected the argument, citing how
the constitution placed no limitation on what could
be put up for a vote in the voter-initiated
amendment process.
"We have no doubt that an express restriction
could be fashioned that would limit the use of the
initiative power in the manner proposed by
petitioners — but the California Constitution
presently contains no limits of this nature," George
wrote.
Justices also rejected an argument advanced by
Attorney General Jerry Brown: that Prop 8 should be
invalidated because it takes away "inalienable"
rights from California residents without compelling
justification.
George wrote that Prop 8 "does not have the
sweeping constitutional effect suggested by the
Attorney General's argument" and the amendment
should only be interpreted "as simply carving out a
limited exception to the reach of the constitutional
rights of privacy and due process."
"Same-sex couples retain all of the fundamental
substantive components encompassed within the
constitutional rights of privacy and due process,
with the sole (albeit significant) exception of the
right to equal access to the designation 'marriage,'
a term that — for purposes of the California
Constitution as it now reads — the people have
decreed is to be reserved for an official union
between a man and a woman," George wrote.
The justices were defensive, however, of the
18,000 same-sex couples that had wed in the state.
The court ruled that the marriages must remain
valid because "interpreting Proposition 8 to apply
retroactively would create a serious conflict
between the new constitutional provision and the
protections afforded by the state due process
clause."
"A retroactive application of the initiative,"
George wrote, "would disrupt thousands of actions
taken … 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."
Doug NeJaime, who's gay and a fellow at the
Williams Institute, a think-tank for sexual
orientation law at the University of California in
Los Angeles, said the court's reasoning was not
surprising because the cases on which the court
would have relied to determine that Prop 8
constituted a "revision" and not an "amendment" were
few and "not directly on point."
But NeJaime added that "it's troubling" that
justices "minimized the impact of Proposition 8 not
only on same-sex relationships in California but …
on the fundamental rights of minority groups more
generally."
"I think by covering up that little question of
the designation of marriage as very insignificant,
in terms of the rights of gays and lesbians in
California, I think it minimizes the injury that's
felt and importance of the decision last May," he
said.
Marc Spindelman, who's gay and a law professor at
Ohio State University, said if voters could amend
the California constitution by reinstating the death
penalty, as voters did in 1972, it's "hard to see"
how the court made unsound reasoning in determining
that Prop 8 was an amendment and not a revision.
"To make this case a case about a revision and
not an amendment would have, at the very least,
required the court to expand the scope of its
precedents on the meaning of a revision in a way
that would have made it seem as though an activist
court was going out of its way to thwart the will of
the people," he said.
Another amendment battle brewing
In response to Tuesday's ruling, supporters of
same-sex marriages were gearing up for a
voter-initiated amendment aimed at repealing the
amendment.
Kors said Equality California was talking to
voters in parts of California where the amendment
received the most votes and explaining to residents
"why denying same-sex couples the right to marry
hurts us."
"And that work is critical work because to … win
back marriage, you have to do it one voter at a
time," he said. "But all the great energy that's
emerged over the last six months is going to be a
huge help in doing that work moving forward."
When supporters of gay nuptials will return the
issue to the ballot, though, remains in question.
Kors said members of Equality California have
said they want to see a ballot initiative in 2010,
when California also will elect a new governor. But
he added the organization is waiting for its
coalition partners to come to an agreement on
timing.
"We believe the political factors weigh in favor
of going back in 2010," Kors said, "if we can pull
together all of the organizations and agree on a
date and a campaign structure that is supported by
key stakeholders, if there are commitments of
financial resources that will be needed to win the
next campaign and if we can harness the tens of
thousands of volunteers … to go door-to-door and
have the conversations that will need to happen in
order for us to have majority support."
Kors said supporters of same-sex marriage have at
least until Sept. 25 to submit language to the
California Secretary of State for a ballot
initiative in November 2010.
While another ballot initiative is a possibility,
experts are saying that a federal lawsuit is not a
viable option to restore marriage rights to same-sex
couples in California.
Kors said legal groups "have all made it very
clear" that a federal lawsuit against Prop 8 "would
be a huge mistake given the current makeup of the
federal bench and the U.S. Supreme Court."
NeJaime said he believed "we're not going to see
any federal challenge" over Prop 8, although he
acknowledged the court ruling on Tuesday brought up
equal protection issues under the U.S. Constitution
by allowing California to recognize the
relationships of some gay couples as marriages and
others as domestic partnerships.
"I just don't think that the federal Constitution
is a place where the gay rights advocates are
looking to move this," he said. "I think this is the
end of it and we'll see this question on the ballot
again."
Spindelman said a federal lawsuit over Prop 8
would be possible, but whether a move would be
advisable is "a different story."
"It's hard to imagine that if the California
Supreme Court didn't do it, that the federal courts
now will," he said. "The groundwork, I don't think,
has been laid across the country for it."
