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.
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.”