Today, the California Supreme Court upheld Proposition 8, but did say that the 18,000 marriages that took place while same-sex marriage was legal will stay intact.
The decision itself is 185 pages, but I thought I would share some of the text here to help people understand the decision. (As always the emphasis in bold green is my own.)
Here’s the first blow:
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… 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. (p.7)
So, it can be equal with an exception? I’m not following.
…it is only the designation of marriage — albeit significant — that has been removed by this initiative measure. (p.8)
Apparently I am following… which leads to their conclusion that Prop 8 was an amendment (not a revision) that passed legally the way that it did.
Here’s the gut-punch:
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… cannot diminish in any respect the content of a state constitutional right as that right has been interpreted in a judicial decision. (pp. 8-9)
In other words: Yes, the rights of some can be determined by the the majority. They even point out that many other state constitutions have such protections for minority groups, but California’s does not. So despite all the different arguments made, including those offered by the Attorney General:
As explained below, Proposition 8 does not abrogate any of these state constitutional rights, but instead carves out a narrow exception applicable only to access to the designation of the term “marriage,” but not to any other of “the core set of basic substantive legal rights and attributes traditionally associated with marriage . . .” (Marriage Cases, supra, 43 Cal.4th at p. 781), such as the right to establish an officially recognized and protected family relationship with the person of one’s choice and to raise children within that family. (p.11)
The court is basically saying: Prop 8 is about words, not about rights.
They also basically said if the Constitution is too easy to modify, that’s not our problem.
But, we do get this.
…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. (p. 13)
And that’s that.
While I have not yet read the ensuing 172 pages, it seems that the gyst of the decision is quite simply that constitutional procedure trumps minority rights.
Don’t expect to hear me retorting about judicial activism, though. If anything, this decision reveals how powerless the Judicial Branch really is in California. They couldn’t find precedent to protect equal protection and enforcement of the same inalienable rights they ruled to protect a year ago? Maybe it’s the “right” call, but it just shows how bound the judiciary is.
At any rate, we continue to wait. In a New York Times Op-Ed this weekend, Frank Rich recalled Dr. Martin Luther King, Jr.’s Letter from a Birmingham Jail: “For years now I have heard the word, ‘Wait.” … This ‘Wait’ has almost always meant ‘Never.'”
I’m tired of waiting. Aren’t you?