California Supremes Uphold Prop 8 AND Gay Marriage

In a 6-1 decision, the California Supreme Court “upheld a voter-approved ban on same-sex marriage” but it “also decided that the estimated 18,000 gay couples who tied the knot before the law took effect will stay wed,” Lisa Leff reports for AP.

People wait in line for a decision from the California State Supreme Court on the legality of a voter-approved ban on same-sex unions, Tuesday, May 26, 2009, in San Francisco. (AP Photo/Paul Sakuma)

People wait in line for a decision from the California State Supreme Court on the legality of a voter-approved ban on same-sex unions, Tuesday, May 26, 2009, in San Francisco. (AP Photo/Paul Sakuma)

The 6-1 decision written by Chief Justice Ron George rejected an argument by gay rights activists that the ban revised the California Constitution’s equal protection clause to such a dramatic degree that it first needed the Legislature’s approval.

The court said the Californians have a right, through the ballot box, to change their constitution. “In a sense, petitioners’ and the attorney general’s complaint is that it is just too easy to amend the California Constitution through the initiative process. But it is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it,” the ruling said.

[…]

The court said it is well-established legal principle that an amendment is not retroactive unless it is clear that the voters intended it to apply retroactively, and there was no such clear indication in Proposition 8.  That provided some relief for the 18,000 gay couples who married in the brief time same-sex marriage was legal last year but that wasn’t enough to dull the anger over the ruling that banned gay marriage.

My Twitter feed has spawned some good quips on the subject:

@anamariecox retweets  @TeresaKopec: “Odd: My marriage doesn’t feel any stronger than it did this morning. But I’m a lot more smug about it!”

@EdMorrissey: “CA Supremes get Solomonic in upholding Prop”

@mldemmons (Michael Demmons):  “Prayers of California gays answered! ‘No!’ says God.”

@La_Shawn (LaShawn Barber) retweets @Blogcritics “Cal Supreme Ct goes the “Missouri Compromise” route on same-sex marriage http://xrl.us/bet8mq”

More substantively, Eugene Volokh proclaims, “court’s reasoning is quite correct” and cites relevant passages from the decision. Gabriel Malor agrees that the judges split the decision exactly right according to the law and thus demonstrates that “Our laws and constitutions are not meaningless. And our courts are not so broken as people claim. The justice system works and works well most of the time.”

In a separate post, Volokh observes,

[T]t seems to me that the California Supreme Court’s cases (1) recognizing a right to same-sex marriage under the California Constitution, and (2) today, recognizing that Proposition 8 validly amended the Constitution and thus abrogated the right are excellent examples for any discussion — in class or otherwise — about popular sovereignty.

Three Justices reached a result different from the one that they had initially reached, based on their judgment that the people’s views prevail over the Justices’. And they rebutted (in my view persuasively, but in any event clearly and informatively) the arguments to the contrary, both arguments focused on the revision vs. amendment question and arguments focused on the people’s supposed legal inability to alter supposedly “fundamental” or “inalienable” rights. On the other side, there was able briefing to the contrary, plus Justice Moreno’s partial dissent (which I’ve only skimmed at this point, though I’ll read it later today). Put together, this seems to me a great case study of the recurring debates about popular sovereignty, constitutionalism, the role of courts, and more broadly the mixed majoritarian and antimajoritarian nature of American constitutions.

These issues are extraordinarily difficult and, as Malor notes, there’s nothing “activist” about judges honestly trying to ferret out where the lines are drawn.  There’s no bright line, obvious to a layman, distinguishing “revising” the constitution, and thus requiring a 2/3 supermajority, and merely “amending” it, which California allows to be achieved by majority plebiscite.  It’s something that requires lawyers and money (but thankfully, not guns) to sort out.

That doesn’t make the process any less frustrating, of course.  Gay marriage supporters are understandably angry that the Supremes didn’t rule their way while opponents are apoplectic that Prop 8 was left standing yet not made retroactive.  Alas, that’s where an honest reading of the law led 6 of the 7 judges.

Kevin Drum‘s right that “it might soon be moot anyway.  Prop 8 passed by only a bare majority, and public sentiment is continuing to change.  An initiative to legalize gay marriage might well pass in 2010, and if it doesn’t it certainly will by 2012 or 2014 at the latest.”

FILED UNDER: Law and the Courts, US Politics, , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. rodney dill says:

    Miss California — Vindicated

  2. Alex Knapp says:

    I’ve only briefly skimmed the opinion, but if I’m reading it right, the Court is keeping the idea that gays be allowed civil unions, that those civil unions should have all the rights and privleges accorded to marriage except that they can’t call it marriage.

    Not really a win for the Prop 8 folks there.

  3. sam says:

    Miss California — Vindicated

    Temporarily. And, anyway, what the ruling says, in effect, is that, henceforth, the word ‘marriage’ shall not be applied to the (civil) union of two gay partners. Partners in gay unions in California, as I understand it, have all the rights of partners in straight unions, except, now, being able to apply the word ‘married’ to themselves. Not a real biggie, and when the good folks of California see that the 18,000 already married gay couples have not brought down civilization, they’re gonna say, What the hell were we thinking?

  4. An Interested Party says:

    While some people might be happy with this decision, their joy is probably short-lived…just like those who opposed Civil Rights in the 60s, they are on the wrong side of history…

  5. anjin-san says:

    Its a pretty simple issue. We either believe in equal protection under the law or we don’t.

  6. If there is no material difference between marriage and a civil union, does a ruling that you are not allowed to call a civil union a marriage create a first ammendment issue?

  7. G.A.Phillips says:

    just like those who opposed Civil Rights in the 60s, they are on the wrong side of history…

    Well thanks to the Republicans we won that fight.

    And what does legalizing pervert marriage have to do with civil rights?

    Ill ask again, what does abnormal sexual tastes have to do with marriage or civil rights?

  8. G.A.Phillips says:

    Its a pretty simple issue. We either believe in equal protection under the law or we don’t.

    Ya right but for what?

  9. Steve Plunk says:

    This case is less about gay rights and more about the ability of citizens to govern themselves. The court was not charged with deciding the ultimate decision on gay marriage but on the procedural question of how the California constitution may be amended. It shows how uninformed many people are as they call the decision “sad” or worse.

    Here in Oregon we also find our initiative system under assault from the legislature so I find this ruling interesting. While it has no bearing on our laws it does show some courts are recognizing citizen’s right to have a say outside of elected representatives.

    If gay rights proponents can get Prop 8 reversed then this decision will give it strength. If they cannot reverse Prop 8 this decision is still good for the citizens of the state of California.

  10. sam says:

    Ill ask again, what does abnormal sexual tastes have to do with marriage or civil rights?

    Which of the following is not like the others?

    A. A blow job

    B. 69

    C. Dildoing

    D. Masturbation

    E. Tea-bagging (no taxation consequences)

    F. The missionary position

    G. Tea-bagging a missionary

  11. Steve Verdon says:

    69, its an integer, the rest are all sexually icky things.

    [/sarcasm]

  12. anjin-san says:

    Does anyone else get the feeling GA has never been laid?

  13. An Interested Party says:

    The childish, homophobic remarks of G.A.Phillips are a perfect illustration of why his is a losing argument…

  14. sam says:

    Maybe it’s time to reprint GA’s prayer:

    Dear lord lol I beseech thee lol to guide my steps lol as I walk through the valley of the shadow of lol Obama. Please lol lolrd, hasten the day when my tadpole does not shrivel lol when the lol annointed one comes on the tv. lol. Speaking of my lol tadpole, oh lord, lol, since that blue-lol-lipped devil as come on the scene lol, my tadpole has been more tad than pole lol…could you help it to regain its lol manly uprightness lol before the next tea party lol? There will be some lol pretty hot tea partyettes there lol and a limp tadpole will not put me in good standing, if you catch my drift lol. Amen lol.

  15. Christopher says:

    I bet minorities are really happy when liberals equate gay rights with civil rights.

  16. An Interested Party says:

    I bet minorities are really happy when liberals equate gay rights with civil rights.

    Hmm…why don’t you take a poll…

  17. sam says:

    Dale Carpenter over at Volokh reports that a federal challenge to to Prop. 8 has been filed and that the attorneys in the filing are David Boies and, mirable dictu, Bush Solicitor General Ted Olson:

    For a long time I’ve personally felt that we are doing a grave injustice for people throughout this country by denying equality to gay and lesbian individuals,” Olson said in an interview with The Advocate. “The individuals that we represent and will be representing in this case feel they’re being denied their rights. And they’re entitled to have a court vindicate those rights.

    Maggie Gallagher’s head was heard to explode over at National Review Online, as were both of Katherine Jean Lopez’s. No word yet on the status of Derb’s head.

  18. G.A.Phillips says:

    The childish, homophobic remarks of G.A.Phillips are a perfect illustration of why his is a losing argument…

    lol, I’m not scared of gay people, your arguments are stupid, thy don’t make any sense, you seek to make perversion normal, you are indoctrinated, good golly, get a clue, stop the stupidity.

    Does anyone else get the feeling GA has never been laid?

    lol, do you mean by a man?

    Hmm…why don’t you take a poll…

    Thats the problem.

    I have many gay friends, well I did, A lot of them are dead now, they died young, guess why.

    Anal sex is bad for you, it’s not normal, your body is not meant to do that.

    I worked in the porn industry for 12 years, I think I might know the difference between normal and perversion a little better then some or most of you. and yes I get of on but try not to get off on nasty sh-t anymore, But I don’t think that it is a right, but I used to, when, before I got a clue.

    I used to go to free speech fund raisers for the porn industry, I was stupid and did not understand free speech and the meaning of rights,like the way you guys are now.

    I am for equal rights for everyone, gay people getting married, or getting your boyfriend or girlfriend strait or normal the government tax burden, is not part of that, I am for civil unions, In some fashion, in some form, because I truly believe a few couples of the same sex want to spend the rest of their lives together, and should be able to leave their stuff to each other and cover each other with the insurance they pay for, even that I know their lifestyles are wrong.
    So keep treating me like a liberal hater, and Keep talking your godsmack and ill keep talking my devilsmack it’s what free speech is really about, and it is actually a right.

  19. Michael says:

    G.A.Phillips,
    How is it that the first third of your argument sounds like a petulant child, the middle sounds like a grand-standing teenager, while the last contains a rational evaluation and even empathy?

    You have a very conflicted psyche. Either that our everything you say is just incongruent BS. I still can’t figure that out.

  20. Steve Plunk says:

    I see the loony lefties are resorting to childish taunting while ignoring the realities of this decision. A commenter gives a reasonable explanation as to why a large percentage of Americans oppose the gay lifestyle and he is immediately attacked. Is that the best gay marriage proponents can do?

    I see none on the left are really addressing the legal arguments but would prefer to speculate on what’s going on in the minds of conservatives. Again an indicator of the intellectual maturity.

    Both sides of this disagreement have reasonable arguments. Both sides need to be good citizens and debate as adults.

  21. An Interested Party says:

    re: Steve Plunk | May 27, 2009 | 10:15 am

    Do spare us all the self-righteous indignation…we were having a discussion about the realities of the decision until G.A.Phillips began talking about “pervert marriage” and “abnormal sexual tastes”…how else should one respond to such drivel except with “childish taunting”…you betray your own bias by referring to homosexuality as a “lifestyle”…if a person is born with an innate trait, that is hardly a lifestyle choice…

  22. Michael says:

    A commenter gives a reasonable explanation as to why a large percentage of Americans oppose the gay lifestyle and he is immediately attacked.

    Who did that?

    I see none on the left are really addressing the legal arguments but would prefer to speculate on what’s going on in the minds of conservatives.

    So, Alex, sam, Stormy, Anjin and AIP were not discussing the legal argument? What blog are you reading anyway?

  23. G.A.Phillips says:

    How is it that the first third of your argument sounds like a petulant child,

    was it the lol. lol.

    the middle sounds like a grand-standing teenager,

    Giving you knowledge of my experience, someting most of you don’t respect, Like when I say I used to think just like you, and don’t believe me. And I treat liberals like they treat others for effect, you should understand this by now M.

    while the last contains a rational evaluation and even empathy?

    yes, I try to be serious once in a while, getting my point across.

    Dude you know me I like to cut to the point and use a liberals tactics against him, but as alway I will apologize for acting like too much of a Idiot while doing so.

    I just get sick of the same old propaganda while talking to some of you, so forgive me for calling names and saying your stupid, I don’t really think that most of you are.

    But when I see crap like this—>

    Do spare us all the self-righteous indignation…we were having a discussion about the realities of the decision until G.A.Phillips began talking about “pervert marriage” and “abnormal sexual tastes”…how else should one respond to such drivel except with “childish taunting”…you betray your own bias by referring to homosexuality as a “lifestyle”…if a person is born with an innate trait, that is hardly a lifestyle choice…

    Well.Ill shut up.

  24. Steve Plunk says:

    re: An Interested Party

    I would hardly call what was going on a discussion. Bullying comes to mind (the question about the commenter getting laid? Come on.) hysterics, straw men, hyperbole, the list goes on.

    As for my self righteous indignation I would remind every one we should work to raise the level of debate not seek the lowest common denominator. As much as you have a right to “discuss” I have the right to criticize the immaturity of that discussion.

    A majority of Americans reject the concept of gay marriage and a good number of them consider homosexual acts perverse and unnatural. That reality seems to be something gay right supporters reject out of hand as bigoted rather than show any respect for religious teachings and societal norms of the last few millennia. By the way, I read recently scientists have still not found the “gay” gene they have been looking for. It appears lifestyle choice may still be what we are looking at rather than innate trait. The debate over that is not settled.

    I’m not really feeling a lot of anything over gay marriage but I do feel strongly about democracy, rule of law, and tradition. I’m also tired of the gay rights movement being so full of themselves and so full of drama. If they start acting like reasonable players in the world of politics and they might get more respect from common Americans. Acting like petulant children hurts their own cause. And for gosh sakes enough of the gay rights parades that devolve into sex themed bacchanalian orgies. Grow up and act civilized in public.

  25. Steve Plunk says:

    Michael,

    Sam’s comment regarding GA’s prayer was a legal argument? Anjin’s comment about GA getting laid was legal theory? How about Sam’s sexual position primer?

    Yeah the discussion was moving away from the court denying the argument concerning when citizens could amend the state constitution.

  26. An Interested Party says:

    Well.Ill shut up.

    No one’s telling you to shut up, but when you type some of the things you do, well, what kind of response do you expect…

    Bullying comes to mind (the question about the commenter getting laid? Come on.) hysterics, straw men, hyperbole, the list goes on.

    As opposed to the extremely rational and polite talk of “pervert marriage” and “abnormal sexual tastes”…

    A majority of Americans reject the concept of gay marriage and a good number of them consider homosexual acts perverse and unnatural. That reality seems to be something gay right supporters reject out of hand as bigoted rather than show any respect for religious teachings and societal norms of the last few millennia.

    At one time, a majority of Americans rejected equal rights for blacks and other minorities as well as interracial marriage…should the views of that majority also have received proper deference?

    By the way, I read recently scientists have still not found the “gay” gene they have been looking for. It appears lifestyle choice may still be what we are looking at rather than innate trait. The debate over that is not settled.

    Oh, so then once it is definitively proven that homosexuality is innate, I assume you will support full equality for homosexuals?

    I’m also tired of the gay rights movement being so full of themselves and so full of drama.

    Please, as if the same can’t be said of Maggie Gallagher and NOM…tell me, is the gay rights movement that way (in your mind, anyway) because it is primarily composed of gay people?

    Acting like petulant children hurts their own cause. And for gosh sakes enough of the gay rights parades that devolve into sex themed bacchanalian orgies.

    Why yes of course…gay people should definitely emulate heterosexuals, who never, ever act like that…

  27. G.A.Phillips says:

    No one’s telling you to shut up, but when you type some of the things you do, well, what kind of response do you expect…

    you may respond me to any way you want I’m no sissy.

    As opposed to the extremely rational and polite talk of “pervert marriage” and “abnormal sexual tastes”…

    I know what these mean and why I said them and they are exactly the truth..

    Oh, so then once it is definitively proven that homosexuality is innate, I assume you will support full equality for homosexuals?

    I’m mighty sure this will not happen, but I am glad to inform you that tens of thousands gay people have left that lifestyle, you might want to reason on that for a while.

    And I consider Sam, Micheal, and Anjin friends, not sure they feel the same about me.

    Try not jamming your theory down everyones throat as fact once in a while and maybe you won’t get your head bit off as much.

  28. An Interested Party says:

    …but I am glad to inform you that tens of thousands gay people have left that lifestyle…

    I’m equally glad to inform you that pressure from society, family, and peers to live a “normal” life has caused many people not to be true to themselves, what’s your point? And it is hardly just “my theory” to argue that homosexuality is probably innate as opposed to merely being a “lifestyle choice”…finally, you severely overestimate your abilities if you think that I got “my head bit off”…

  29. Steve Plunk says:

    An Interested Party,

    Once again I find the pro gay rights argument failing because of it’s lack of discipline and respect for opposing opinions. Let’s work backwards through your counterpoints.

    I have yet to witness any public heterosexual parade or event that approaches the gay pride events for shock value. You have to admit these are not for children or old people. That lack of discipline (I’ll be using this word a lot)turns off many people including myself.

    The upholding of Prop 8 is a reasonable piece of jurisprudence. The law is the law and the court ruled appropriately. Reacting to this as if it is genocide is drama. It’s over the top. It’s (again) undisciplined. Get organized and pass a law making it legal without the histrionics.

    This debate of whether people are born gay, made gay, choose gay, whatever, is a difficult matter. The gay rights movement likes the born gay explanation since it puts them in the same class as racial minorities, born a certain way and can’t change. But not many years ago homosexuality was not considered such. It was classified as a mental illness. Now I don’t consider it a mental illness but it is abnormal, that means simply not the norm. I do wonder about the fervor the gay rights movement attaches to the search for the “gay gene”. It’s politics of acceptance but if you are going to play that game what happens if there is no “gay gene”? Back to mental illness? Let’s hope not but the movement needs to win this one on other grounds.

    The subject of being something versus doing something is still at play when comparing homosexuals to racial minorities. For many that will take time to reconcile, time the gay rights movement does not want to give anyone. We also have the religious differences and societal traditions. Blacks originally were considered subhuman but later became Christians and soon Christians were advocating for an end to slavery. Even now Christian churches teach us to hate the sin but love the sinner (discipline). I don’t see reciprocal behavior coming from the gay rights people (undisciplined). Ask Miss California. For speaking her mind and talking about her religious beliefs she got what? I’d say a lot of hate. Of course many were wrong about minorities but there are still many differences between the two sets of people.

    Lastly, I see your point about G.A. use of the term ‘pervert marriage’. His use of ‘abnormal sexual tastes’ was okay however, it is not the norm. My point is you don’t have to lower to the common denominator. There was clearly bullying and childish comments (lack of discipline) rather than reasoned responses. If the gay rights movement wants to be taken more seriously then they must gain discipline in all the areas I mentioned.

    Lastly (again) it appears we have elevated the debate so my indignation may have had an effect. I appreciate your civility in this.

  30. An Interested Party says:

    re: Steve Plunk May 27, 2009 18:49

    Your generalizations about the gay community are far more offensive than any of the attributes of some of them that you don’t like…the fact that some parts of some gay pride parades openly flaunt gay sexuality is hardly an indictment against homosexuals as a whole…do you really believe that the actions of a few can be used to tarnish an entire group? Do the actions of, say, David Vitter or Eliot Spitzer, or the massive straight porn industry, or the numerous examples of adultery in straight marriages soil all heterosexuals? By the way, no one was arguing that the upholding of Prop 8 wasn’t a reasonable piece of jurisprudence so much as we were making the point that, with societal trends the way they are in California, this ruling will eventually be moot as Prop 8 will probably be repealed by the people of California within a few years…

    Reacting to this as if it is genocide is drama. It’s over the top. It’s (again) undisciplined.

    Umm, who is doing this? Certainly no one here and certainly not the gay community as a whole…

    The gay rights movement likes the born gay explanation since it puts them in the same class as racial minorities, born a certain way and can’t change.

    A more charitable explanation is that many homosexuals prefer to think that they are born gay because that is how they feel about themselves…it’s not for crass political purposes, but rather, an honest representation of themselves…

    But not many years ago homosexuality was not considered such. It was classified as a mental illness.

    It also wasn’t that many years ago that people of different “races” were considered inferior to others and the same religious and societal sources were used then that are being used now in an effort to paint homosexuality as a “perversion”…

    For many that will take time to reconcile, time the gay rights movement does not want to give anyone.

    To paraphrase a rather famous person…

    We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed. Frankly I have never yet engaged in a direct action movement that was “well timed,” according to the timetable of those who have not suffered unduly from the disease of [unequal rights]. For years now I have heard the word “Wait!” It rings in the ear of every [gay person] with a piercing familiarity. This “wait” has almost always meant “never.” We must come to see with the distinguished jurist of yesterday that “justice too long delayed is justice denied.”

    Finally, and with all due respect, you really should practice what you preach…you constantly make the point that the gay rights movement is so terribly “undisciplined” and yet, you have resorted to sweeping generalizations, strawman arguments, and a seeming disposition to not look at their point of view as you would like them to look at yours…oh, and as for elevating the debate, it didn’t happen because of your indignation but, rather, the fact that you aren’t acting in the immature way that G.A.Phillips was…I hope that civility has been maintained…

  31. Michael says:

    Once again I find the pro gay rights argument failing because of it’s lack of discipline and respect for opposing opinions.

    As were the civil rights proponents in their day, they had absolutely no tolerance for the opposition’s belief that blacks were an inferior species.

    Tell me, Steve, how a gay person can respect an opinion that calls them a pervert, an abomination? Do you respect the opinion of militant Muslims that believe you should be forced into submission?