CA Supreme Court: Prop 8 and existing marriages upheld

UPDATED 2:10 p.m., 3:00 p.m., 5:00 p.m., 7:00 p.m. - see below

The California Supreme Court has ruled:

The California Supreme Court upheld Prop. 8 by a 6-1 vote but ruled that existing same sex marriages can stand. Several dozen people gathered in front of the California Supreme Court building today in San Francisco in advance of the court's ruling on whether to uphold Proposition 8, the November ballot measure in which state voters banned gay and lesbian marriages.

Read more on the decision:
San Francisco Chronicle
Daily KOS
LA Times

UPDATE: Integrity Appalled at lack of equal protection for California citizens. (Click read more below.)

Read more on the decision below:

UPDATE 3:00 p.m. Dissenting opinion by Justice Moreno:

Under the majority’s reasoning, California’s voters could permissibly amend the state Constitution to limit Catholics’ right to freely exercise their religious beliefs (Cal. Const., art. I, § 4), condition African-Americans’ right to vote on their ownership of real property (id., § 22), or strip women of the right to enter into or pursue a business or profession (id., § 8). .....

Proposition 8 represents an unprecedented instance of a majority of voters altering the meaning of the equal protection clause by modifying the California Constitution to require deprivation of a fundamental right on the basis of a suspect classification. The majority’s holding is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution. This could not have been the intent of those who devised and enacted the initiative process.

In my view, the aim of Proposition 8 and all similar initiative measures that seek to alter the California Constitution to deny a fundamental right to a group that has historically been subject to discrimination on the basis of a suspect classification, violates the essence of the equal protection clause of the California Constitution and fundamentally alters its scope and meaning. Such a change cannot be accomplished through the initiative process by a simple amendment to our Constitution enacted by a bare majority of the voters; it must be accomplished, if at all, by a constitutional revision to modify the equal protection clause to protect some, rather than all, similarly situated persons. I would therefore hold that Proposition 8 is not a lawful amendment of the California Constitution.

UPDATE 5:00 p.m.
Pacific School of Religion faculty and staff arrested at Prop 8 decision rally. The School also denounced the decision.


Integrity Press Release:

Integrity joins with those around the nation who express profound disappointment in the California Supreme Court's abdication of its responsibility to offer equal protection to all California citizens in today's decision regarding Proposition 8.

"This morning we saw justice both denied and delayed," said Integrity President Susan Russell. "Today's ruling by the California Supreme Court does not just affect the lives of same-sex couples hoping to live happily ever after with the love of their life; it sets a terrible precedent that a simple majority of voters can relegate millions of citizens to second class status. Until 'liberty and justice for all' really means 'all' we are not yet the nation we are called to be and today was a sad step backward on that arc of history that generations of equality leaders have told us bends toward justice."

Russell continued, "It is a decision that is not only antithetical to the core American values of liberty and justice for all, it flies in the face of the core Christian commitment to love our neighbors as ourselves. It is a decision that grieves the heart of God, violates core values of both our faith and our founding fathers, and puts the State of California on the wrong side of history on the issue of marriage equality. It is a decision that should not and will not stand."

"As the mother of a son in uniform," said Russell, "I find it deeply ironic that our Supreme Court would issue an opinion allowing discrimination to be written into our statutes the day after a national holiday dedicated to the memory of the brave men and women who have given their lives to defend the Constitution against all enemies, foreign and domestic-to preserve for their fellow citizens the American dream of life, liberty, and the pursuit of happiness.

"Integrity will work, pray, and advocate for the full inclusion of all the baptized in all the sacraments within the Episcopal Church and work with our California Faith for Equality allies toward marriage equality in California as we continue our 35-year history of giving voice to the LGBT faithful within the Episcopal Church and from the church to the world."

For more information contact:

The Reverend Susan Russell, President
president@integrityusa.org
714.356.5718 mobile

Ms. Louise Brooks, Media Consultant
lebrooks@earthlink.net
626.993.4605 mobile


From Friends of Jake major points of the decision:

The principal issue before us concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process so as to incorporate such a limitation as an explicit section of the state Constitution.
There were three questions argued before the court. (1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?
It is not our role to pass judgment on the wisdom or relative merit of the current provisions of the California Constitution governing the means by which our state Constitution may be altered. (See Wright v. Jordan (1923) 192 Cal. 704, 711-712.) In the absence of an explicit subject-matter limitation on the use of the initiative to propose and adopt constitutional amendments, and in light of the history of the relevant California constitutional provisions regarding the amendment/revision distinction and the numerous California precedents interpreting and applying that distinction, we conclude the existing provisions of the California Constitution governing amendment and revision cannot properly be interpreted in the manner advocated by petitioners.

Accordingly, we hold that Proposition 8 constitutes a constitutional amendment rather than a constitutional revision.


(2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution?
Because the California Constitution explicitly recognizes the right of the people to amend their state Constitution through the initiative process, the people, in exercising that authority, have not in any way impermissibly usurped a power allocated by the Constitution exclusively to the judiciary or some other entity or branch of government.

(3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

Indeed, the absence of a very clear and unambiguous statement that the measure would have the effect of invalidating the estimated 18,000 marriages of same-sex couples that already had been lawfully entered into is particularly telling in this instance, because if this asserted effect of the measure “had been brought to the attention of the electorate, it might well have detracted from the popularity of the measure.” (Evangelatos, supra, 44 Cal.3d at p. 1219.)

Id. at 132-33. The Court concludes:

Under these circumstances, we conclude that interpreting Proposition 8 to apply retroactively would create a serious conflict between the new constitutional provision and the protections afforded by the state due process clause. In the absence of a clear and unambiguous statement that the new provision is to have such an effect, the general legal guideline that requires courts to interpret potentially conflicting constitutional provisions in a manner that harmonizes the provisions, to the extent possible, further supports the conclusion that Proposition 8 properly must be interpreted to apply only prospectively.

Accordingly, applying these well-established principles of interpretation relating to the question of retroactivity, we conclude that Proposition 8 cannot be interpreted to apply retroactively so as to invalidate the marriages of same-sex couples that occurred prior to the adoption of Proposition 8. Those marriages remain valid in all respects.


And more:

Contrary to petitioners’ assertion, Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right of privacy and due process that was analyzed in the majority opinion in the Marriage Cases — that is, the constitutional right of same-sex couples to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage” (Marriage Cases, supra, 43 Cal.4th at p. 829). Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion.

Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.

By clarifying this essential point, we by no means diminish or minimize the significance that the official designation of “marriage” holds for both the proponents and opponents of Proposition 8; indeed, the importance of the marriage designation was a vital factor in the majority opinion’s ultimate holding in the Marriage Cases, supra, 43 Cal.4th 757, 845-846, 855.

Nonetheless, it is crucial that we accurately identify the actual effect of Proposition 8 on same-sex couples’ state constitutional rights, as those rights existed prior to adoption of the proposition, in order to be able to assess properly the constitutional challenges to the proposition advanced in the present proceeding.

We emphasize only that among the various constitutional protections recognized in the Marriage Cases as available to same-sex couples, it is only the designation of marriage — albeit significant — that has been removed by this initiative measure.

The tone of the decision is regretful, and stresses the very narrow window of Constitutional law under which this was argued (and was admittedly a long shot). It was NOT argued under equal protection issues.

UPDATE 7:00 p.m.
Photos of Episcopalians at protests.

Comments (2)

Loss for the anti marriage forces? Read these comments here.

The CaSC went with the will of voters. This is a win for gay rights in this respect: in the near future a pro gay marriage referendum will pass. Any attempt to overturn that referendum will have to overturn the reasoning in this case in favor of the voice of the voters.

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