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Politics | 05/26/2009 12:30 pm

CA Supreme Court Upholds Proposition 8

California’s Supreme Court voted 6-1 to uphold gay-marriage ban.
By The Staff at wowOwow.com
© Getty Images

The California Supreme Court has ruled that Proposition 8, an amendment prohibiting same-sex marriages, will remain intact. Opponents called on the court to review the proposition, which passed after the court had already ruled to allow gay marriage in the Golden State.

Today’s ruling, which came out 6-1, does say that marriages that took place between the court’s May decision and Proposition 8’s passage will remain valid under state law. Gay activists and their allies, however, say they will bring the issue back to the ballot box, and may do so as early as next year, the Los Angeles Times reports. The paper provides a bit more information:
Even though the court has upheld Proposition 8, a key portion of the court’s May 15, 2008, decision remains intact. 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.

Do you think the state’s Supreme Court made the right decision?

351 Reader Comments (so far…) Sign In or Register to comment

caj p
I do agree that marriage should be between a man and a woman myself but I do think they should have civil unions to give them the same rights as married couples. 
By caj p on 05/26/2009 1:40 pm
Judy K.
If people are against same sex marriage because of religion that is one thing.  But civil unions not being recognized in California, of all places, is just so surprising to me.  Hopefully, the next time it is on the ballot it will pass.
By Judy K. on 05/26/2009 1:46 pm
Rebecca G
Civil Unions are still legal in California.
By Rebecca G on 05/26/2009 6:18 pm
C J

Marriage is just a word and giving gay couples "civil unions" but giving them the same rights is just calling it by a different name!

This ruling is a just a temporary roadblock on a fight that will eventually be lost by the gay rights opponents. I think its about time everyone get out of others’ bedrooms and focus on their own lives and their marriages and their families and leave everyone else to their own happiness. I’m not gay/lesbian, but even I’m sick of people sticking their moral objections in other people’s lives when most can’t even handle their own lives.

By C J on 05/26/2009 1:46 pm
Lauri Anderson
Unfortunately, the majority of the people of California voted for Prop 8, so I’m not sure the Court had a choice.  I live in Wisconsin, and our state Constitution has also been changed.  I will never understand that position.  How does allowing same sex marriage in any way diminish the sanctity of the institution for opposite sex couples?  The only thing I can think of is the religious factor, which should have no bearing on the outcome of the law.
By Lauri Anderson on 05/26/2009 1:49 pm
Kathleen Oliver
For those interested, here is the site from which the text of the ruling can be downloaded: [ http://www.courtinfo.ca.gov/opinions/ ].

So far it has been an astonishingly good year for civil rights.  Since both the Republican Governor and the Democratic Attorney General oppose Proposition 8, perhaps the California state government will find a way to implement the constitutional revision and still preserve equal treatment under the law.  Once we have been able to read the fine print, we might find that the Supreme Court itself has suggested how this might be done.

From what I have read of the opinion thus far, the court seems to have been obliged to have ruled as it has regarding the constitutional “revision” vs. “amendment” question.
The ruling goes on to say …
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.
The campaign for this proposition suggests that the term “marriage” is the exclusive domain of religious institutions.  If that is so, then the government should not be in the “marriage” business (as such).
Every (so-called) “marriage” is an instance of a personal contract between domestic partners.  The state could recognize every such civil union / domestic partnership personal contract without resorting to the use of the word “marriage”, thus sidestepping religious disputes.

No civil union / domestic partnership contract arranged for through the government EVER amounts to a religious assertion regarding “marriage” by the government.  If all couples (straight and gay alike) get from the government the same piece of paper - a “Civil Union / Domestic Partnership” license, there are no religious ramifications.  Every couple then can go to the church of their choice to have their unions sanctified by the church (and then deemed to be “marriage” according to the preferences of the churches and of the couples).
The churches are free to bless and approve whichever unions they choose and everyone gets the same piece of paper and the same legal rights and responsibilities from the government.  The government only handles civil business and the church only handles religious business.
With such an arrangement, the rights of churches are protected and, presumably, everyone could finally be happy.

We’ll see.  At any rate, the approach described here appears to be in harmony with what the court stated today in the case of Strauss v. Horton:
We emphasize only that among the various constitutional protections recognized in the Marriage Cases as available to same-sex couples, it is only the designation of marriage - albeit significant - that has been removed by this initiative measure.
To restate this … as best as I can make out from the opinion, if a same-sex couple fails to receive from the state of California a domestic-union contract (sans the term “marriage”) with precisely the same terms, rights and legal obligations as the contract provided to opposing-sex couples, then the former may have a cause of action of precisely the same kind which they won on in the matter of Marriage Cases.
By Kathleen Oliver on 05/26/2009 1:56 pm
C J

Kathleen, I agree.  The thing is, anyone who wants to get "married" has to go through the civil area anyways - aka, a license to get married.  If they would just call them all "civil unions", there would be no argument here.  It is sad, however, that the fight is over a mere word - marriage. My question is, what makes anyone own a word? Is it seriously that big of a deal that you can call yours a marriage, but someone else must call theirs a civil union? To me, that seems petulant and childish. If you want your union to be recognized by a church, that’s fine…but in the end, the obsession over the word marriage needs to end. Let people be with those they love and get over it already. 

(btw, my use of "you" refers to everyone in general)

By C J on 05/26/2009 2:06 pm
S G
First thanks Kathleen for wading through the site for the opinion. I agree with you religion has no place in government and visa versa. I am interested in how its wording is going to affect things. I have no issue with two grown people in love getting married.
By S G on 05/26/2009 3:23 pm
Sherry Dale
Very sad indeed :-(  Two steps forward, eight steps back….
By Sherry Dale on 05/26/2009 2:02 pm
f p
Once again the late great state of CA shows its bigoted mentality for the world to laugh at.  They voted in Prop 8 like they voted in Pro 13 which in itself is breaking the state economically.  Republican mismanagement also has had a great deal to do with its downfall.  A sad fate for a once great state.
By f p on 05/26/2009 2:06 pm
S G
The wording fp though is quite interesting and I believe in the long run will be on the sides of all California couples including same sex. This initiative was bought and paid for by a rich Mormon who is doing this around the country. He is putting money behind this. It once again is not a citizen oriented thing. I have no problem with anyone believing what they will but I have a true problem when they try to take others rights. If Kathleen is correct it reexamines the fact religion has no place in the business of government. We will see. One day we will see rights for all my friend. You and I know we will never let the horrors that happened the last administration happen again.
By S G on 05/26/2009 3:30 pm
Kathleen Oliver
In a profound financial crisis such as the one which California currently faces, it is of the utmost importance that the state take whatever action is necessary to clearly fulfill all of its obligations under the law and do what it can proactively to avoid costly litigation brought by parties which feel that the State has failed in some obligation.

The court ruling in Strauss v. Horton makes it abundantly clear that the state remains obligated to comply will all of the requirements of the ruling in Marriage Cases with the sole exception of the use of the term “marriage” as an “official designation”.
In order for the State of California to fulfill its obligations under Marriage Cases and preserve equal protection of the law, the demands of Proposition 8 seem to require the state to change its paperwork so that “marriage” is no longer the “official designation” used.
Instead, paperwork would use any number of alternative designations; the possibilities for a license include “Civil Union License” / “Domestic Partnership License” / “Civil-marriage License” or (creating a compound term) “Civilmarriage License”.
In any case, a footnote / disclaimer can explicitly affirm that the government is making no religious assertion or claims with regard to “marriage” (that being left exclusively to churches).

In terms of civil administration, then, the same body of law and the same paperwork applies to all couples, gay or straight.  When this is the case, it appears that the state government will be fulfilling its obligations re. both Marriage Cases & Strauss v. Horton, and will also be ensuring (to use the Supreme Court’s wording) “the equal protection of the laws guaranteed by the California Constitution”.
By Kathleen Oliver on 05/27/2009 10:43 am
Kathleen Oliver
Here is another approach which, apparently, the State of California could use to fulfill all of its legal obligations.
The state’s license form could have a checkbox at the top with the instructions, “Select the title which applies to you.

> “Civil Union License” / “Domestic Partnership License”
… or …
> “Civil Union License” / “Domestic Partnership License” / “Marriage License”

  The state, by policy and by law, will never refer to same-sex unions as “marriages” (and, similarly, no same-sex union will be “recognized” as a “marriage”).  Since the same form is used in all cases, for gay and straight couples alike (conveying the same legal rights and responsibilities) the state may elect never to refer to any kind of marriages, since ALL of them of every kind are (for the government’s purposes) “civil unions” whatever anyone else may choose to call them.
By Kathleen Oliver on 05/27/2009 2:42 pm
Kathleen Oliver

Douglas W. Kmiec, professor of constitutional law at Pepperdine University, has just published an article — "A Prop. 8 Win-Win" — saying essentially the same thing.


[ http://www.latimes.com/news/opinion/la-oe-kmiec16-2009jun16,0,3614803.st… ]

By Kathleen Oliver on 06/17/2009 4:35 pm
R.J.B. Reed
No, I do not think that the CA Supreme Court made the right decision.  If one part of the Consitution says equal rights for all, and another new amendment says that a subset of people should not have the rights of another subset, that sounds like a revision to me.  Revisions shouldn’t happen via simply majority…..  (Though the fact that any part of the Constitution can be changed by simply majority seems completely absurd to me.)
By R.J.B. Reed on 05/26/2009 2:11 pm