California Supreme Court Thinks Prop 8 Was No Big Deal

The overarching conclusion of the California Supreme Court today is that Proposition 8 was no big deal.

After all, same-sex couples still have all the rights included in the "marriage bag" and so the actual effect of reserving the term marriage to heterosexual couples is not significant enough to warrant a more extensive constitutional approval process.

The main focus of the majority's decision was on the distinction between a constitutional amendment and a constitutional revision.

Amendments are small changes requiring only a majority vote and revisions are larger changes, changes to the basic governmental plan or framework, that require a debate and approval process in the California State House as well as amongst the electorate.

As the Court writes: "Proposition 8 does not by any means "repeal" or "strip" gay individuals or same-sex couples of the very significant substantive protections afforded by the state equal protection clause either with regard to the fundamental rights of privacy and due process or in any other area, again with the sole exception of access to the designation of "marriage" to describe their relationship."

Because the effect of Proposition 8 is so "minor" we don't need to classify it as a revision and it can stand, as is, after a simple majority vote.

But the California Court offers no real analysis for its conclusion that simple nomenclature is really a minor matter. This, despite the fact that the offhanded treatment of the term marriage forms the basis of their decision to uphold Proposition 8.

Justice Moreno, in his dissent, comes to the opposite conclusion. Enforcing equal protection requires protection for all aspects of the law, including nomenclature. He even quotes the Court's previous conclusions in Re Marriage Cases:

"Denying the designation of marriage to same-sex couples cannot fairly be described as a "narrow" or "limited" exception to the requirement of equal protection; the passionate public debate over whether same-sex couples should be allowed to marry, even in a state that offers largely equivalent substantive rights through the alternative of domestic partnership, belies such a description. "[T]he constitutional right to marry . . . has been recognized as one of the basic, inalienable civil rights guaranteed to an individual by the California Constitution . . . ." (Marriage Cases, 43 Cal.4th at p. 781.)

Justice Moreno concludes that upholding Proposition 8 - a ballot measure that concretely denies equal protection and creates a legal distinction between two groups for no other reason than a fear and hatred of a minority by the majority - will "emasculat[e] the equal protection clause of the California Constitution as a provision of independent force and effect. "

If one agrees that a legal distinction between two similarly situated groups is nothing to scoff at, it is quite possible that Proposition 8 was a revision.

Justice Moreno explains that revisions to the Constitution may be structural, but are not limited to structural changes and may also include amendments that, "substantially alter the substance and integrity of the state Constitution as a document of independent force and effect."

Justice Moreno's point - and it is an important one is that if you refuse to dismiss the pain and suffering caused by Proposition 8 and address the legal discrimination it enshrines in the Constitution as being important and dangerous, you cannot consider Proposition 8 a simple amendment.

The majority never addresses this point. It calls the ballot measure a minor change that carves out a discreet exception to the equal protection clause and moves on to a detailed description of case law that ceases to be relevant when the court using that case law refuses to engage with the human outrage and controversy surrounding the subject of their decision.

Failing to uphold equal protection rights for same-sex couples is one thing, but doing so without engaging in the real debate over the importance of marriage, rather than civil unions, is a disservice to California's people and to the body of jurisprudence that forms the basis of many legal rights and responsibilities enforced in the State.

Comments

[shylove2]

Challenge the concept of marriage, reformulate rights and privileges and institutions of intimacy for the new 21st Century not some old religious dogmatism and then petition for commensurate rights with others for a new geodesic lifestyle...

Get out of the box of the toxic nuclear family and start group contractual arrangements for geodesic families with more group stability and flexibility for our new eco-economic necessity for a stressed out world! More sharing and less over-consumption and hiding behind closed doors of dualistic thinking

[Mulvaney]

This morning I thought about the internal contradictions in the opinion itself. On one hand, the court states that Prop. 8 did not make a fundamental change because it only affects the word "marriage" -- in all other respects, the state's obligation to provide equality remains. On the other hand, it preserved the existing marriages, in part, because there were real and substantial rights that vested when couples became married.

I don't see how you can have it both ways: "marriage" is either important or it isn't. The internal contradictions in the opinion will eventually cause the "separate but equal" facade to crumble.

The Court has overturned initiatives before -- like the 1966 decision striking down the amendment to the state constitution that effectively repealed fair housing laws. Perhaps this time around the fate of the Bird Court was in the back of their mind. But if equality is illusory under Prop 8, they must eventually confront it again.

[disintaGreatNation]

Everybody take a deep breath and relax.
Although the outcome yesterday was unwelcome (but inescapable), there is good news: the California Supreme court gave Proposition 8 the most narrow construction possible. The court said Prop. 8 took away only the term "marriage," not a same-sex couple's legal rights. Opposite- and same-sex unions are legally identical. Prop. 8 requires merely that the terms "marriage," "married," "marry," etc. not be applied to same-sex unions. The court ruled that lawfully wedded same-sex couples must use different nomenclature (at least for now).
wedding = wedding
marriage = matrimonial union
married = lawfully wed
marry = wed

[kobio]

taxation without representation

[jamessch]

We'll move forward with this...

Repeal DoMA!
Pass The Uniting American Families Act!

[SILVANUS]

These justices should consider how their brains and humanity will be remembered 30 years from now.

Pitiful.

[Manx]

If Proposition 8 had banned marriage between blacks and whites, would the court have considered that "minor"?

[Gidster]

When the court repeals other discrimination laws, in favor of the majority, will it also be "No bid deal"?

[Gidster]

That should read 'No BIG deal'

[FreelanceWriter]

That's NOT the point. Again, for those who can't seem to grasp what LEGALLY happened yesterday, the court was not -- I repeat NOT -- there to settle the far larger and philosophical argument "Is same sex marriage constitutional?"

The issue they WERE there to rule on was very, very simple: Was the WAY that Prop 8 was handled constitutional? Was Prop 8 created properly and was it properly and fairly put up for vote per California state election guidelines?

Answer: the judges ruled yes. They simply ruled that California voters absolutely, positively DO have a right to amend their own state constitution by majority vote. THAT'S the case they were hearing and that's what they decided upon.

[MarcoLuxe]

Freelance: Sorry, you're overstating the court's decision. The court said the amendment process [50%+1]is OK to change nomenclature, while a change in substantive rights would have to be analyzed for its constitutionality. If Prop 8 had included the terms..."and all legal incidents of marriage" it would certainly have been found as an attempt to abrogate equal protection. In this case, the preexisting equal substantive rights [but not the name] provided by the CA legislature to domestic partners worked against a pro-gay court decision.

[meast36]

Regarding my previous comment, I invite you to help me understand these questions that I and I am sure many more straight people have. I dont have a problem with gay people being allowed to marry. I do have a problem when the will of the people is ignored though. You can save your comments if you plan on responding with personal attacks however.

[SILVANUS]

The will of which people? Your people? Her people? My people?

By the way, the Pep Club voted that you should be kicked out of the prom.

[meast36]

By the will of the people, I am referring to the proposition that was on the ballot in November. The voters (citizens of California) voted to keep the traditional definition of marriage.

Gidster, the status quo is not always maintained. The same voters that voted against gay marriage are the ones who voted for a new direction for this country in Barack Obama.

Once again, I support the right of gay people to get married so long as it is left up to the states AND is voted upon.

Equating gay marriage to the civil rights movement does not help the gay movement, in fact, I believe that this argument is detrimental to the cause. Especially if the aim is to put this issue on another ballot in the future. Furthermore, I don't believe that marriage is a "right" no more so than having a drivers license is a "right". Also, not allowing a nam to marry a woman based on his or her sking color is not even close to denying a man the ability to marry another man.

Another interesting point: Did you know that Barack Obama's stance on gay marriage is IDENTICAL to Carrie Prejean's (Miss California)? But I don't see any editorials lambasting him like they did that poor woman who was just stating her opinion.

[Gidster]

The will of the people, also known as Tyranny of Majority, will ALWAYS maintain the status quo.

Any civil rights brought to a majority vote would have not been passed. It is government's job to assure the equal application of rights throughout the population regardless of majority opinion.

Loving v. VA, found that denying marriage rights due to race was unconstitutional, many opposed that as well; however they did not get to vote an amendment to keep the discrimination.

Since the court granted these rights, then allowed a ballot initiative to remove them, then upheld that initiative as law, the court now has the power of precedent to remove whatever rights the majority wishes to remove from whomever the majority wishes to target.

[KipRip]

The very concept of rights is that they were endowed by the creator. Not given to man by man or groups of men. They can be taken away through due process on an individual basis not simply because a majority of people disagree with how you exercise those rights.

[meast36]

I support the right of gays to marry. I am a straight man, however, I feel that if 2 people are in love then they should be able to get married. However, our society is based upon democratic principles, whereby majorities are needed to change laws. Why shouldn't this vote stand? Although I support gays being able to marry, I don't see how their "rights" are being violated. They can still have civil unions. It is my understanding that the gay community sees 3 main differences between marriage and civil unions. If I am wrong then feel free to correct me. First is wealth and asset transfers which are permitted under marriage but not civil unions. Also taxes are allowed to be filed jointly at the state level but must be filed single at the federal level. Second is Health Insurance coverage and the third is the terminology itself. As far as taxes go, filing jointl state and single federal returns can actuall be advantageous about half the time. Furthermore, how many straight couples, let alone gay and lesbian couples does estate taxes affect? As far as health insurance, my company as well as many, many other insurance companies offer what are basically family plans for same sex couples. Finally, while I can see how the word marriage vs civil partner may seem exclusive, I don't understand the big deal. Two men can't be considered married since that is a term reserved for 1 man and 1 woman.

[SILVANUS]

"they" "they" "they"....

Oh, the great "Other."

[gypsy508]

If you have health insurance right now I would say consider yourself lucky. Arguing that point and claiming to be at some kind of disadvantage isn't going to win a lot of friends. If this is the tipping point, gays should work for universal health care.

[meast36]

Gypsy...Show me where I said I was at a disadvantage, please. It says that no where in my post at all, yet you attack me for soemthing I didn't say. I was just pointing out that in terms of healthcare, state taxes, work benefits, the ability to jointly own property and businesses, etc., there is NO DIFFERNCE WHATSOEVER between being considered "married" or in a "civil union"

[Gidster]

Equal rights does not include majority rule. If it did, African Americans would never have voting rights, or ever be considered more than 3/5ths of a person.

The majority was against granting African Americans equal rights, the majority was on the wrong side of history.

What happens when the majority votes to make California a theocratic state?

[owendog]

Meast36 - I invite you to respond to Gidster's argument.

[M1]

Domestic Tranquility is the responsibility of our leaders and the courts. Today, the Court has set citizen upon citizen, deepened the divide and split families apart. California will not recover as quickly economically due to this decision and more boycotting can be expected.

No big deal! We will see about that! NO JUSTICE NO PEACE!

NO MORE MR. NICE GAY! IT IS IN YOUR FACE TIME!

[BoyInBOYCOTT]

Supremes

No Justice

NO PEACE

[psamty]

Chances are, as Hispanic and Black populations go up relative to whites, that people will vote against legalizing gay marriage in greater numbers. I don't know what people are smoking when they claim the opposite will happen....

[Maggie Sager]

Except, as more and more hispanic immigrants come to CA, and the white majority declines (as has been happening for years), the percentage of those against ssm is steadily declining, thus invalidating your flippant observation.

[meast36]

Historically, blacks are much less likely to approve of same sex marriage than whites are. Blacks are overwhelmingly opposed to ssm. In fact, 7 out of 10 blacks who voted in California's election in November opposed gay marriage. Again, for the umpteenth time, I have no problem with gay marriage so long as it is left up to the states and the voters vote on the issue. Its obvious through the polling that white people ages 18-48 are gay marriage advocates best friends.Hispanics are harder to gauge although research does suggest that most oppose same sex marriage (around 60%) but not by the huge numbers that blacks do.

Reference: http://www.washingtontimes.com/news/2008/nov/08/blacks-hispanics-nixed-gay-marriage/

[Rrhain]

That's because it was age that was the defining characteristic.

Not race.
Not religion.
Not money.

Age was the strongest indicator of support or rejection of equality. As the older bigots die off, they will be replaced by those who understand that separate is never equal.

[jcwtts1]

Wow, that is a huge massive insanely large generalization. How about this, with a church exception the number of blacks in favor of gay marriage would probably go up by 20 -30 percent. Include an exception so that our churches don't have to (they can if they want) marry same sex or LGBT couples and I don't know a black person under fifty who would have an issue with gay marriage. What you are doing by generalizing each communities opposition, by lumping all blacks into a homogeneous grouping, by not taking into account the exact same factors that keep white voters from supporting gay marriage is wildly out of line. Since you like generalizations here is one, another reason your community makes little or no progress lobbying the black community is that in many cases we feel the contempt you have for us. If you need our votes stop calling us names.

J

[T2inDC]

psamty the people are smoking the facts. Poll after poll has Americans in FAVOR of gay equality. Remember it was not the majority of voters that voted for Prop 8, it was the majority of voters that showed up. This wasn't the will of the people, it was the will of the Mormon church. Besides, now that we can take away the rights of a minority, will just pick them off by ballot initiative and take away the voting rights of any group that doesn't agree with us. That's the plan.

[JohnBisceglia]

Glad you paid your state and federal taxes, CA?

[SILVANUS]

Glad I moved.

[Winning09]

Haven't we known for months that calling it a "revision" instead of an "amendment" wasn't going to work?

[superstition]

Well our President decided to bury the outrage with his supreme court nominee being announced the same day.

How predictable.

Oh, and it was such a great idea to move the verdict away from last week so it wouldn't happen on the same day as the Harvey Milk trial verdict.

How clever.

[mergina]

Yes, that is correct, and he did so with a woman who you will never hear say she is pro choice or supports gay rights.