High Court's Ruling Sets Stage for More Ballot Battles
Contra Costa Times
By John Simerman 
May 27, 2009

The term "marriage" is important, but alone isn't enough to call a voter-approved ban on same-sex wedlock unconstitutional in California.

That's the core of the state Supreme Court's decision Tuesday upholding Proposition 8, and it left both sides bracing for ballot battles that could see voters confronted with the same question for years, given the narrow majority that passed Prop. 8 in November.

Already, advocates said they would return to the ballot as early as next year, seeking to overturn Prop. 8.

"They have left us to the voters," said Shannon Minter, legal director for the National Center for Lesbian Rights. "The voters can take away a right from one group, it can be restored and they can take it away again. It's a hell of a way to run a democracy."

Some legal scholars said they were hardly surprised. Past court rulings hold the bar high in defining a constitutional revision, versus voter amendment, they said. With same-sex couples now receiving the same state rights in California as married couples, the court found that barring same-sex marriage did not change "the basic governmental plan or framework embodied in the pre-existing provisions of the California Constitution."

While keeping intact about 18,000 same-sex marriages that took place last summer, the majority ruled that Prop. 8 "carves out a narrow and limited exception" to the rights of privacy and due process that the same court cited last year when it Advertisement Click to learn more... Quantcast overturned a statutory ban on same-sex marriage. In his 136-page opinion, Chief Justice Ronald George took pains to spell out the difference between this case and the 4-3 ruling last year.

A pair of justices, however, argued that the court ruled too narrowly and could have found that Prop. 8 amounted to a revision if it infringed too much on individual rights, and not just fundamental government. One scholar said the court seemed to open the door to ballot measures that could pull back rights for gay couples or other groups.

"I think the court tries to have it both ways and leaves the door open for other amendments, saying we don't really have to decide these other issues," said Brad Sears, executive director of UCLA's Charles E. Williams Institute on Sexual Orientation Law and Public Policy.

But UC Davis law professor Vikram Amar said the court seemed to "send a signal that taking away the label (of marriage) is OK, but if you tried to repeal all the substantive benefits, that might be a different situation.

"The dispute a year ago was just about the label. They said we're not disagreeing with what we said a year ago. We realize labels are important, but labels aren't everything," Amar said. "This decision doesn't break any new ground. It tries to avoid breaking any new ground."

On Tuesday, a pair of lawyers who squared off in the Bush v. Gore vote challenge in 2000 reportedly joined in a novel lawsuit in U.S. District Court arguing that Prop. 8 violates the U.S. constitutional guarantee of equal protection and due process. Theodore B. Olson, a former U.S. Solicitor General who represented President Bush, and David Boies, who argued for Al Gore before the U.S. Supreme Court, filed the lawsuit on behalf of two gay men and two gay women, seeking federal intervention and a preliminary injunction against Prop. 8.

A lawyer who argued for Prop. 8 said the ruling affirms the voters' right to reserve "the dignity that comes only with the term marriage" to a man and a woman.

"We don't fault at all the idea that this will ultimately be decided by initiative," said Andrew Pugno, attorney for ProtectMarriage.com. "The voters have twice now voted for traditional marriage within a span of a few years. I don't think they want to be asked to vote on this again."

Like it or not, they almost surely will.

Reach John Simerman at 925-943-8072 or jsimerman@bayareanewsgroup.com.