The"“Strange Decision" of the California Supreme Court

As most people probably already know, the California Supreme Court recently voted to uphold Proposition 8, a ballot measure that bans gay marriage. The measure, which defines marriage as solely between a man and a woman, was approved by 52 percent of California voters last November as an amendment to the State Constitution. Yesterday, the court voted 6-to-1 to uphold the measure and rejected lawsuits that argued Proposition 8 was not simply a constitutional amendment, but a constitutional revision, which requires the legislature’s approval.

Chief Justice Ronald George noted in his majority opinion that Proposition 8 still guarantees same-sex couples the right to civil unions and, “carves out a narrow and limited exception” by “reserving the official designation of the term ‘marriage’ for the union of opposite-sex couples.”

However, Justice Carlos Moreno’s sole dissenting opinion reads, “even a narrow and limited exception to the promise of full equality strikes at the core of, and thus fundamentally alters, the guarantee of equal treatment that has pervaded the California Constitution since 1849. Promising equal treatment to some is fundamentally different from promising equal treatment to all.”

Interestingly, the court’s decision does preserve the 18,000 same-sex marriages that took place last year during the few months that gay marriage was legal in California. Gay marriage was permitted by a 4-to-3 decision from the California Supreme Court last May and then barred after the passage of Prop 8 in November.

Bryan Wildenthal (pictured at left) is the first openly gay law professor at Thomas Jefferson School of Law. He and his partner were married in California last July. Earlier today he spoke with Amy Goodman of Democracy Now! about the California Supreme Court’s decision to uphold Proposition 8.

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It’s a strange decision. It’s the latest episode in a long-running dispute here in California, started when San Francisco Mayor Gavin Newsom threw open City Hall and authorized same-sex marriages. The California Supreme Court said that was jumping the gun, couldn’t do that. Then the California Supreme Court heard a challenge, through the regular court process, to the laws which prohibited marriage between gay couples, and in a historic decision, a courageous decision, last year, the California Supreme Court said that the statutory laws in California violated the California State Constitution by not granting equal marriage rights to gay couples. They struck down those laws under the California Constitution, as it then stood.

Then Proposition 8 got put on the ballot, approved by a narrow majority, a simple majority, just 52 percent of the voters. And so, then the California Supreme Court got the case back before them for another round, and that’s what they just decided yesterday. And the California Supreme Court decided that that was a valid amendment to the California Constitution.

Now, under our California Constitution, you have two different things: you have revisions and amendments. And it has always been thought that only through a revision of the Constitution could a really fundamental, far-reaching change be made. So the issue was, is that a fundamental far-reaching change to our Constitution, to strip away a fundamental right from a single group of citizens?

And in what can only be described as a disappointing failure of nerve, the California Supreme Court ruled 6-to-1 that, yes, by a simple majority vote through the amendment process, you could strip away those rights, it did not require revision. They could have thrown it out, by saying that you have to do a revision. A revision requires a two-thirds vote of the state legislature, and only then would it go to the voters. By saying they can do it through an amendment, they are saying that a proposition based on petitions, signed by a mere eight percent of the voters and then a mere fifty-percent-plus-one approval, can strip away a fundamental state constitutional right. So, it’s a mixed bag with the California Supreme Court.

Justice Carlos Moreno, the sole dissenter from this decision, says this decision doesn’t just affect gay couples; it threatens equal protection and equal rights for any minority group, which in California, under our law, they are now at risk, any minority group—Mormons, Latinos, African Americans. Anyone whom the majority might disagree with can now have their rights stripped away, and that’s valid, simply as an amendment. You don’t have to do a revision.


As to where the gay rights movement in California goes now, given the fact that in other parts of the country more and more states are moving to legalize gay marriage, Wildenthal says:

I think we have to go back to the voters, go back to the political process. The court, as I said, it’s a mixed bag. I think we’ve exhausted what can be achieved in the California courts. Very few people — and as a legal expert, as a constitutional law professor who studies the US Supreme Court, that’s not going to be an avenue that’s going to work under current membership of the court and under current doctrine.

So, I think we in the gay community and with our friends and supporters throughout the society have to go back to the voters and have a conversation and say, “Is it right? Should someone be denied a civil legal right, simply because some people may disagree with it or disapprove of it?” That’s not right. You know, we all—as a civilized society, need to live together, we have to respect the rights of our fellow citizens to have basic rights, regardless of whether we might agree with or disapprove of their marriages or their families.

To read the full transcript of Amy Goodman’s interview with Bryan Wildenthal, click here.



Recommended Off-site Links:
What the California Supreme Court Said - Gabriel Arana (Box Turtle Bulletin, May 27, 2009).
You’ll Never Guess Who’s Behind the Federal Court Challenge to Prop 8 - Jim Burroway (Box Turtle Bulletin, May 27, 2009).

See also the previous Wild Reed posts:
Maine Becomes Fifth State to Allow Same-Sex Marriage
Frank Rich on the “Historic Turning Point in the Demise of America’s Anti-Gay Movement”
The Same Premise
Love and Justice in the Heartland
The Real Sodomites: Proponents of Proposition 8
Unrest in California Over Passing of Proposition 8
Reflections on the Passage of Proposition 8