Reconsidering the initial response to the Prop 8 ruling

Everything you thought you knew about today's Calif Supreme Court Ruling on Prop 8 may be wrong!

While the initial analysis of the decision treated the ruling as a defeat for gay rights activists, an examination of pages 36-37 suggest otherwise:

The scope of the exception created by Proposition 8, however, necessarily is determined and limited by the specific language and scope of the new constitutional provision added by the ballot measure. Here the new constitutional provision (art. I, § 7.5) provides in full: "Only marriage between a man and a woman is valid or recognized in California." By its terms, the new provision refers only to "marriage" and does not address the right to establish an officially recognized family relationship, which may bear a name or designation other than "marriage." Accordingly, although the wording of the new constitutional provision reasonably is understood as limiting use of the designation of "marriage" under California law to opposite-sex couples, and thereby modifying the decision in the Marriage Cases, supra, 43 Cal.4th 757, insofar as the majority opinion in that case holds that limiting the designation of "marriage" to the relationship entered into by opposite-sex couples constitutes an impermissible impingement upon the state constitutional rights of privacy and due process, the language of article I, section 7.5, on its face, does not purport to alter or affect the more general holding in the Marriage Cases that same-sex couples, as well as opposite-sex couples, enjoy the constitutional right, under the privacy and due process clauses of the California Constitution, to establish an officially recognized family relationship. Because, as a general matter, the repeal of constitutional provisions by implication is disfavored (see, e.g., In re Thiery S. (1979) 19 Cal.3d 727, 744; Warne v. Harkness (1963) 60 Cal.2d 579, 587-588), Proposition 8 reasonably must be interpreted in a limited fashion as eliminating only the right of same-sex couples to equal access to the designation of marriage, and as not otherwise affecting the constitutional right of those couples to establish an officially recognized family relationship.

(emphasis added.)

John Culhane writes:

The majority went on for almost 140 pages. In brief, their points - which I'll next explore in somewhat greater depth - are these:
(1) The California Constitution is easy to amend, and that's not something we can change:
(2) The deprivation of rights isn't that big a deal, really, because all that's been removed by Prop 8 is the word "marriage" rather than the rights that go with it;
(3) Based on precedent and constitutional history, Prop 8 is a permissible amendment to the state's constitution - not a more substantial revision, which would require prior submission to the legislatures (and a 2/3 approval) before going to the voters;
(4) There's no separation of powers problem here: Everyone's doing their constitutional job; and
(5) The Attorney General's "novel" argument that certain rights are "inalienable" and therefore immune from the vagaries of majority rule, has no traction.

A commenter at Andrew Sullivan's site writes:
Have been through the Prop 8 opinion and dissents. It appears that this is a blockbuster pro-gay-rights decision, restricting the effect of Prop 8 to the effect of removing the designation of gay civil unions as "marriage," but upholding all equal rights previously declared by the Court; and, suggesting that if the opponents of gay rights were to try to restrict equal union rights for gays by constitutional change, such change would be an Amendment (not a revision) and thus would be procedurally much more difficult to accomplish. Being able to lay claim to the word "marriage" is important, but in all other respects this appears to be a spectacular decision in favor of gay rights..

The following bloggers are still untangling the decision, but they see it as a victory for marriage equality activists.

Daily Kos.

IT at Friends of Jake.

Comments (8)

So one can have a wedding but not call it marriage?

Legally speaking, yes.

I find the Supreme Court decision positively Shakespearean. (Remember Portia in Merchant of Venice? A pound of flesh but nothing more...) Prop 8 supporters knew that asking to curtail tangible rights and privileges wouldn't fly; even Kenneth Starr asked only to limit the claim on the term "marriage.". That's what they got... No more. Bit of a Pyrrhic victory, perhaps?

The strangest thing is that now California has no fewer than three protected classes of committed couples: married straight folk, same-sex couples who were married between the last court decision and the passage of prop 8, and same-sex couples filing under domestic partnership laws (which bestow rights and privileges almost identical to marriage.)

What a mess. But I think chants of victory from some quarters this day ring awfully hollow...

I read the decision. The court was in uncharted waters, as even Lambda Legal admitted months ago. Last May the court could use an equal protection test against a law that said that only marriage between a man and a woman is valid or recognized in California, but here they had to use one part of the constitution against another. Even though they had ruled that gays deserve strict scrutiny, the highest level of scrutiny, here they had the whole initiative process to contend with, which is very specific to the California constitution. No other state allows this sort of amendment thing. For them to invalidate this particular referendum would have meant changing a lot of other things about the California constitution. There were no precedents for them to go by whereas before they had lots. A narrow majority to eliminate the law easily became a majority in support of the same words now in the form of an amendment. I am disappointed in the ruling but given what
they had to work with the justices could have done much worse. I need to read the dissent more to figure out how strong a case he makes. It was fun that he quotes Iowa. But the Iowa constitution is very different from the California constitution. It seems to me the justices bailed because they did not want really to mess with amendments, which are quite different from laws.

At least they clarified the law and said that the majority may not strip a suspect class of equal protection. The problem with marriage is, as Werdagar said, prop 8 impinges on the right to marry but that the right to marry remains in the form of state domestic partnership to the extent gays are allowed to have their families legally recognized. Whereas in their decision which invalidated the law they used the fact that the state allows same-sex couples to enter into domestic partnerships as an admission of guilt on the part of the state, in the case of the same words in the form of an amendment (only a marriage between a man and a woman is valid in California) they counted domestic partnership against the plaintiffs. The California domestic partnership is a double-edged sword. In the case of the amendment, they said that domestic partnership will have to do for now even though in their ruling against the law they said that a separate category puts equal
protection and due process at risk. But even in their ruling against the law they never said that domestic partnership per se undoes equal protection. They said it risks putting equal protection in jeopardy.

Courts usually have three basic options in dealing with marriage equality cases. They can order full marriage equality, civil unions (domestic partnership in California), or simply punt and give it to the legislature to decide. In this case they have demoted same-sex couples to domestic partnership and thrown the issue back to the people to decide in a referendum.

They clarified, contra Ken Star, that the majority would not be able to amend the state constitution to strip gays of domestic partnerships. Werdagar said that domestic partnership would now have to be beefed up. They did not go with Ken Star's view that a majority could bring slavery back. Here they said the initiative merely takes the word "marriage" away. They said that unlike some other state constitutions, the California constitution does not spell out which amendments should be excluded. That was the same reasoning they used in ruling that prop 8 does not invalidate the marriages of the 1800 couples who married in California when marriage was legal. The amendment does not say it is retroactive.

They clarified that a referendum would be the only way to get full civil marriage equality.

It could have been a lot worse. And it could have been a lot better, but given what they had to work with, it seems fair to me so far.


I will have to reread it.

We got downgraded to domestic partnership, which in California gives many of the rights of marriage. Murdoch and I have a California domestic partnership, which we would have to use if we go to California and something happens to one of us. California would not disregard our Canadian marriage. The issue will now go back to the people in a future referendum.

Domestic partnership, of course, is not portable and has many other problems. But in theory it gives many of the rights of marriage. Here is where the dissent is strong because he cites Iowa, a court which understood that civil unions are separate and unequal.

So far California has fallen behind on the march to marriage equality. The only solution for California is another referendum. Fortunately no other state has an easy initiative process. The decision was both fair and disappointing.


Gary Paul Gilbert

I found the idea of a right to marry which does not include the right to civil marriage to be casuistry. One has the right to establish an officially recognized family relationship but not get married. That is similar to New York State, where may not get married in NYS but may go elsewhere to marry and have one's marriage recognized in New York.

And the officially recognized family relationship would only be recognized in California and has a much lesser chance of being recognized elsewhere than if one had married. One would have to stay in California to be safe. Married people generally get to travel and have their marriages recognzed elsewhere.

I am ambivalent about the decision but it is fair given what they had to work with, or so it seems to me on a first reading.


Gary Paul Gilbert

Ah! Gary Paul Gilbert raises another issue that may very well drive this into a positive decision from the U.S. Supreme Court: the fundamental right to travel. Constitutional law textbooks contain a bevy of cases invalidating state residency requirements to receive welfare benefits. The reason? The length of residency requirements "chilled" this fundamental right to travel. If variations in names and benefits associated with "Marriage-like" arrangements discourage people from crossing state lines, a federal right has possibly been invoked and violated.

Ultimately, the law will have no recourse but to find that if it walks like marriage, talks like marriage, provides the same fundamental rights/social goods as marriage and grows out of the same fundamental constitutional rights as marriage - it must BE the same as a heterosexual marriage, even if the two parties to it are the same gender. The law is frustratingly slow, but it is like a glacier now on the move - unstoppable.

God's Peace, Z

The problem is in terms of case law. DPs/Civil Unions have next to none. So for example at a hospital in Humboldt Countya couple of years back, nurses and doctors blatantly ignored one partner’s plea to see the other even after he repeatedly protested that they had a domestic partnership. Yes, he sued after the fact, and the hospital was ruled in the wrong (if I recall correctly no damages were awarded). Small comfort when his partner was dying on the hospital bed.

Christopher, Here in New York we had an infamous case concerning a same-sex couple who had a Vermont Civil Union and St. Vincent's Hospital, Manhattan. One of the spouses died due to what seemed to be medical negligence but the surviving spouse could not sue because New York State does not recognize civil unions. So much for separate but equal! I follow the California Court's reasoning in the beginning of their decision concerning the difference between an amendment and a revision. But I am still uncomfortable with the idea that one can take away the word "marriage" and not do any harm to the couples affected.


The Court has basically said that it has done all it can to help with this problem and that the next step is to go back to the people with a new referendum. California has a really strange constitution and I am happy New York State and all the other states do not operate like California, a state which cannot even raise taxes to pay its deficit. They are boxed in by initiatives limiting taxes and will probably at some point have to limit the ballot initiatives system.

Gary Paul Gilbert

The issue is not so much marriage as equal protection. All similarly situated persons should be treated alike, said the Iowa Supreme Court. The state may not deprive a politically disadvantaged minority of the rights enjoyed by other similarly situated persons.

Iowa was careful not to romanticize marriage.


Can a state deprive a suspect class of the dignity and respect other groups enjoy? The exception made to equal protection to the right to marry by the California Supreme Court fails to offer a compelling state reason for the exception, namely that same-sex couples are to have the same right to marry albeit without the word "marriage." On the one hand, their May decision affirming the right to marry for all couples remains standing in the sense that LGBT couples are still to have the right to form legally recognized familial relationships. But the price is that they have ratified the creation of a bunch of classes under California law. Straights may marry, divorce, and remarry as much as they want, while LGBT couples who married before Prop 8 are allowed remain married, with the option to divorce and have a domestic partnership for a subsequent relationship. LGBTs who wish to marry after Prop 8 must settle for domestic partnerships. What a mess! It all
sounds rathuh German as in measuring how much Aryan and Jewish blood one has.

California Supreme Court Justice Moreno, in his dissent, makes this point beautifully that equal protection is a core value of the constitution and that taking away even a small portion of it still touches on its core content. Justice Werdegar agreed with Moreno that the test of whether an amendment changes the constitution should not be whether it changes the governing framework of California but also whether it changes core constitutional values, such as equal protection. She said that stripping gay couples of the right to the word "marriage" impinges on equal protection, but because the right to marry or enter into a legally recognized familial relationship remains, she does not think Prop 8 changes the constitution. Instead she says one of the remedies for discrimination has been eliminated so that domestic partnership would now have to be beefed to guarantee gay couples the same rights as straight married couples. She seems to overestimate the
symbolic power of the withdrawal of the word "marriage."

The more I reread the California decision, the more I find that however plausible the approach of the majority may seem, the results are so weird as to call into question their reasoning. The creation of classes under a constitution calls into question the very rule of law.


Gary Paul Gilbert

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