Tuesday, May 26, 2009

California Supreme Court Upholds Proposition 8

Today the California Supreme Court, sitting in San Francisco, upheld the ballot measure (a "referendum") which declared that marriage in California is restricted to one man and one woman. The justices voted in a surprisingly strong six to one decision. There has been an ongoing and acrimonious see-saw battle over gay marriage in California since 2000, at which time the first ballot measure defining gay marriage as unlawful was passed. Subsequent challenges were rejected, until one challenge was upheld in 2008, resulting in Proposition 8 appearing on the November 2008 ballot.

First, a little background. This is not a political decision. This is a very technical legal decision which does not decide gay marriage directly, but rather whether Proposition 8 is sufficient under the California constitution to determine the definition of marriage. The result of today's ruling defines marriage in California, but only because the court upheld Proposition 8, not because the court itself is currently writing that definition.

Two diametrically opposite arguments determined the scope of the decision. Neither directly addressed gay marriage. Proposition 8 already did that, so all that was left was to decide if Proposition 8 would stand or fall.

The anti-Proposition 8 lawyers argued that Proposition 8 illegally "revised" the California constitution. The reason they argued this fine point of law is that regardless of express provisions of Proposition 8, it was passed on the vote of the people by only 52.5 percent. Under California's somewhat arcane rules, a revision to the state constitution requires a supermajority of two-thirds in the legislature. In 2008 the court had decided in joint cases named "In re Marriage Cases" that since the California constitution did not clearly define marriage, then it would do so and declare marriage itself a "basic right" against which the law could not discriminate on the basis of the sex of the partners. Simply put, anti-Proposition 8 lawyers argued that the ballot measure took away a basic right as defined by the court's earlier decision.

Proposition 8 proponents argued that the ballot measure filled a gap in the California constitution by defining marriage, thus mooting the court's earlier decision by defining marriage in an "amendment" to the state constitution rather than revising the basic rights laid out in the constitution. Again, simply put, the Proposition 8 lawyers were arguing that when the court earlier found marriage in general to be a previously undefined basic right, it was doing so only because of the gap in the constitution which Proposition 8 filled with the express will of the people.

The whole matter had been a nasty brawl for years. There were many twists. Chief Justice Ron George and Associate Justice Joyce Kennard, considered conservative judges, were among the majority in the 2008 case which held that the gay marriage issue was a matter of refusing a basic right to a minority protected in the California constitution. But when the oral arguments took place in March of this year, both asked questions of the gay marriage proponents about why they thought this was a revision of the constitution and not simply an amendment as well as why they thought the will of the people in filling in the "gap" discussed above should be overturned. The state's attorney general is usually expected, but not required, to argue in favor of the existing legislation (i.e. Proposition 8), but California's former governor and current attorney general, Jerry Brown, chose to argue against Proposition 8. And during the campaign to pass the ballot measure, opponents regularly referred to it as "Prop H8," attempting to define the measure not as a reinstatement of the classic definition of marriage but rather a hate campaign aimed at gays and lesbians.

The culture war surrounding this decision is likely not over. Both sides had indicated they were prepared to act immediately after the decision was handed down. The decision also produced a rather odd result. Those marriages performed between the 2008 court ruling and the passage of Proposition 8 were ruled to be valid.

The Proposition 8 opponents (the gay marriage proponents) had already declared that they will take the matter to the people again. An amendment passed by a majority can be overturned by a counter-amendment with a minimally larger majority. And the court declared clearly that it had found the measure to be an amendment, not a revision. The opponents say that turnabout is fair play. The armistice is now in place. The war will start up again in very short order.

Nobody will ever accuse California politics and law of being dull.


John Keats said...

This endless litigation makes me wonder if we're ever going to see a resolution. It's frustrating to sit back and watch. I'm a conservative who "supports gay marriage," but the tactics employed by the gay community are a huge turnoff. With one exception, my gay friends agree.

The mainstream is slowly coming to the side of the gays. The anti Prop H8 movement does only two things: it marginalizes the legitimate views of most homosexuals and makes it seem like they're unwilling to meet the mainstream, and it trivializes the support of Average Straight Joe.

Needless to say, that is a losing proposition.

LawHawk - how do you see the litigation ultimately turning out?

LawHawkSF said...

John: The litigation is for all intents and purposes over for the foreseeable future. The issue is now back in the political arena and out of the legal arena.

Your analysis of the opposing positions and the eventual outcome are pretty much spot-on. I see California, sooner or later, as passing some form of gay marriage law. If it is proposed in the form most often presented to the public, I will continue to oppose it, and I believe the people will join me. However, if the bill is presented to the people with a clear legal exemption protecting religious institutions from litigation over "gender-discrimination," I believe that such a bill would pass fairly easily. Domestic partnerships are already in place with essentially all the rights granted to traditional marriage.

Re-defining marriage itself, without a religious exemption, would be unacceptable to most mainstream Californians. It's up to the gay marriage proponents at this point to write the bill that overcomes that strong objection. If they don't, the proposed bill might fail by an even larger margin than Prop 8 was passed by because the Prop H8ers alienated a fairly large number of previously neutral voters.

BevfromNYC said...

Firstly, I am surprised. I thought they would throw it out. No offense to my California friends, but you've some crazy judges on the courts in California.

The sticking point has always been about the word "marriage". You can't take 1000's of years of social and religious structure and expect to throw that over in a few years. If the gay community now goes about trying to legalize "civil union", they will get what they want. Civil Unions will be marriage without gender issues and I have not heard anyone dispute that same sex couples shouldn't have equal rights under the law. Just that they want the word "marriage" to be specifically between a man and a woman.

LawHawkSF said...

Bev: I sent Andrew an e-mail last night. After originally predicting that the decision would be four to three upholding Prop 8, I revised it to five to two to uphold. I was truly surprised by the six to one result.

The weirdest result was those marriages (around 18,000 of them, I think) that took place during the eight months that gay marriage was allowed. There is now an orphan class of married people who couldn't get married today. Only in California could something that strange happen.

Civil unions (domestic partnerships) are already fully legal in California, and are virtually indistinguishable from traditional marriages in the eyes of the law. All couples, gay or straight, must register their "marriage" with the state for it to be a legally valid.

So the issue finally comes down to "if we allow "marriage" to be re-defined to include the domestic partnerships of gay persons, do the state's anti-discrimination laws require that religious institutions perform them regardless of religious doctrine?" If that issue is resolved in favor of religious freedom by the wording of a new law, then gay marriage is probably inevitable in California.

The Prop 8 argument had very little to do with the right of gays to marry, and a great deal to do with activists attacking religious freedom. Gays could already be married in any religious institution willing to perform the marriage, and there were plenty of those. But just like straight couples, the marriage had to be registered with the state. Gays then had to go through that one extra legal step of forming a legal domestic partnership, since only traditional marriages could be registered solely on the basis of the religious ceremony. That was quite literally the only distinction between "marriage" and domestic partnerships. With a "religious exemption" built in, I suspect that the final barrier will fall.

LawHawkSF said...

Well--it didn't take long. I have already received an e-mail from our illustrious Mayor Newsom (candidate for governor of California) requesting that I sign his petition to "restore marriage equality" with no mention whatsoever of protection of freedom of religion. In other words, a politician who should know better wants to stir up the division pot by proposing that the people vote on exactly the same issue that Prop 8 and today's California Supreme Court already addressed.

In his e-mail, he requested that we [bigots] talk to people "directly impacted by the decision" in order to get proper perspective. Considering that I have a large number of gay friends who are themselves split over the issue, what good is that going to do? Poor California--to be so poorly served by its demagogic politicians. This isn't an attempt to resolve an issue, it's just another way to promote identity politics by raising the phony "marriage equality" banner.

StanH said...

It sounds like you have a bonified California cluster Lawhawk. Our legal system has become a club in which vocal minorities can club the majority about the face and shoulders. We’ve beat this horse ad nauseum on BH, Gay Marriage, but it seems you give an inch and they want a mile (any victim group). And the CA saga continues.

AndrewPrice said...

Lawhawk, great article. Thanks for the explanation -- as usual, the media is giving a very simplistic explanation.

I think it is a good sign for your court that they chose to view this as a technical legal matter than jumping on this as a chance to make policy. I know that many CA Supreme Courts of the past would not have been content to stick to the law.

Like you, I suspect this issue will drag on in your state for years to come.

SQT said...


I think Newsom is all about riding the gay-marriage issue into the Governor's office if he can. Man, that guy gives me the creeps.

LoneWolfArcher said...

Amazes me that they say that voters can redefine marriage (though they were merely reversing a redefining of it), yet say that existing gay marriages still stand?!??

So a marriage is now defined as a being between one man and one woman, except if the marriage began between certain dates?!? How is that law?

BevfromNYC said...

Can someone explain to me how the government can force a church to participate in a ceremony that is against it's religious principles? Who cares if there is referendum. If they can, then I want a seat in Congress. I know someone else might have been elected, but I want their office.

LawHawkSF said...

Lonewolf: Many of us are shaking our heads and asking the same question. That little twist didn't solve much (except for those who were married between those dates, of course). And despite what I said to John Keats earlier, I can see a faint glimmer of further litigation. The state issue is resolved, however strangely, but I can stll envision one last shot at the courts in which gay people who didn't get married between those dates go into federal court to claim that they are now being denied a status that others were granted by accident of time. Theoretically, they would argue that if some gay people have been granted a right, it is unconstitutional 14th Amendment discrimination to deny it to everyone. It's a stretch, but the ACLU and Lambda Legal have filed stranger actions.
If I can conceive of it, so can they.

Bev: Your question is the reason we're having this whole debate about activist judges and the incremental dismantling of the 1st Amendment. Who would have thought just a few years ago that political speech could have been banned by an act of Congress and upheld by the Supreme Court? Behold, McCain-Feingold. Canada has already shown us the way by imposing anti-discrimination statutes to the churches and requiring that pastors no longer preach against homosexuality. They have even imposed criminal sanctions against some, requiring one as a condition of probation to apologize publicly for his doctrine and invite homosexual activists to speak in his church. The 1st Amendment in America seems to prohibit that, but when activist judges feel free to re-write the Constitution, how long will it be before they try the same thing here?

LawHawkSF said...

SQT: You are undoubtedly right. I think he miscalculates, however. It may not stop his juggernaut to Sacramento, but his triumphalist speech on the stairs of San Francisco City Hall last year when he said "You're gonna have gay marriage whether you like it or not" didn't sit well with a major segment of the Democrat base, including African-Americans and Latinos.

LoneWolfArcher said...

Good call LawHawk. That was probably the court's calculation: by upholding the 8 months of gay marriages then it leaves the door open slightly to get it pushed through somehow.

I think it was a way to get some of what the liberal court wanted (gay marriage) without a ruling that would have undoubtedly been overturned if the SCOTUS had taken up the issue.

BevfromNYC said...

"...one extra legal step of forming a legal domestic partnership..."

So wouldn't this be the answer? California should require the extra legal step for all marriages whether civil or religious. Then no one is discriminated against. It would be similar to way they do it in Europe. Then everyone gets what they want and the government can charge a fee and get money and everyone is happy! Divorce lawyers will be happy too. The marriage, the more divorce!

LoneWolfArcher said...

OR, we could keep things they way they've always been. Nothing wrong with that.

LoneWolfArcher said...

P.S. Next step will be civil unions between crazy pet owners and their pets.

BevfromNYC said...

Yes, you are right, but I think the damage is already done and it is inevitable that we will have gay unions. But we can avoid having "marriage" co-opted and churches won't be forced by the State to compromise their principles and beliefs if they just require everyone couple to take that extra step and register. I know it is just one more slip down that slippery slope into oblivion, but I can't think of any other way to avoid it.

At least California has Prop. 8. NY has an unelected Governor who is trying to push a marriage equality legislation through to bolster his sagging campaign. (He is trailing significantly to disgraced Gov. Spitzerin the polls) There was a huge rally yesterday in Sheridan Square in the Village against the decision of the California courts. Our gay City Advocate Christine Quinn spoke out against..get this...activist courts that deny rights with their terrible decisions. Huh??? I was not aware when the court uphold the rule of law, that it would be a bad decision.

BevfromNYC said...

Is there a way to edit after I post a comment? I can't always catch mistakes until after I post a comment even when I preview (It's my glasses, yeah, that it, its my glasses...)

AndrewPrice said...


There is no way to edit a comment. But what you can do is to republish it (cut and paste, correct and then publish) and then delete the older comment.

LawHawkSF said...

Bev: Your solution of having everyone who gets "married" prepare a domestic partnership document would be an accommodation to the gay activists that would be unacceptable to most religious people. BUT something close to that could be a solution. Rather than enrich lawyers by requiring a legal document, all persons who wish to be married could have whatever ceremony they want, but for the marriage ("union, "partnership") to have legal validity, they would also appear before a "magistrate" and have a civil ceremony as well. Or they could skip the religious ceremony entirely, since the civil ceremony would be the only one that counts at law. Currently, even civil ceremonies in California are restricted to one man and one woman, and that's why the extra domestic partnership document is required for gay couples to have the same benefits as the traditionally married. As you suggested in your first post, they could just be called "unions" with the "one man/one woman" restriction removed, and "marriages" could remain the province of the religious institutions. That is the solution that works in Europe. "Unions" would eliminate the contentious issue over the word "marriage" by incorporating all of California's community property law into the civil ceremony joining one man/one woman, one man/one man or one woman/one woman. Then all we have to do is wait five minutes for the polygamists and polyandrists to demand to know why it has to be just two, baby. Well, no solution is going to make everybody happy.

Lonewolf: In San Francisco there are no pet owners. "Owners" and "pets" have been eliminated from the lexicon, and replaced by "human/animal companions." They will be in line right behind the polygamists demanding their rights.

AndrewPrice said...


There is interesting view that a lot of Libertarians talk about where the government gets out of the marriage business entirely.

Basically, the idea is that the state will only recognize some form of civil union (probably not with pets), and would leave the word "marriage" as the exclusive domain of churches.

In many ways that is compelling because it gives more meaning to the word marriage. Though presumably any "church" could marry you.

But I'm still trying to sort out all of the legal implications in my head, i.e. is it even workable. I don't have an answer to that yet, but it might make an interesting article if someone wants to think about it.

Captain Soapbox said...

It seems to me that the crux of the matter is the word "marriage." Who would have thought a simple little term would have wound up as a "civil rights" issue. The way I see it, and I'm no lawyer (unlike half of everyone else here) and not particularly religious by a normal definition, but the gay community or at least the part that is in your face activist, is fighting over a single word. Most civil unions confer the same legal rights as a "marriage" does, so if they get the same rights but are demanding more, it comes down to the word.

The word though has religious significance, which to my mind means that if the are really such the civil libertarians that they like to portray themselves to be, then it's a "church and state" matter, therefore, they shouldn't be pushing for a religious tradition being controlled by laws. But hey, I'm no lawyer, but that seems like simple logic to me.

If they already have everything they'd get but the name, then it's not a civil rights issue. If the name is the holdup then they're being hypocritical when they trot out the "separation clause" because the term itself is generally accepted to be one with a religious connotation. Should be fairly simple to sort out. Believe me there are places where getting married or having a civil union are a hell of a lot more complicated than they are in the US.

So to me it's simple, gays should take advantage of the civil unions deal, and if they're so hung up on having the word "marriage" applied...well I hate to say it but: tough. To me, someone that's arguing against thousands of years of application and precedent because they'll feel "invalidated" because they can't use a word shows a lot larger self-esteem issue being at the root of their problems.

Captain Soapbox said...

Another problem, and one that has been brought up, to me is the really important issue. If the state guarantees any sort of union to be labeled a "marriage" and guarantees that through the force of law, what's going to happen the first time a gay couple gets denied their wedding because a religious institution believes that gay marriage goes against their doctrine and beliefs? The church will get ordered to perform the ceremony?

Talk about complete hypocrisy on the "separation clause" that the left likes to bring up so much, and their generalist hypocrisy when it comes to Judeo-Christian religions in general. You know that if the Catholic or Baptist churches refused to marry a gay couple (after gay marriage rights became the law) that there would be protests, vilification, and endless court action until an activist court ordered the church in question to do it. Yet at the same time if a gay muslim couple wanted to get married and the mosque said no, well we have to respect their cultural and religious traditions. You know it's true.

To me the whole gay marriage thing is an issue that has not only been important to gays, especially the gay activist types, but has also brought along the anti-religious crowd. They see it being an issue that they can use to further diminish the role of religion because they know that many religions would be "non-progressive" and give them further ammunition for their own agenda.

LawHawkSF said...

Captain: My biggest concern with this whole marriage issue has always been the inevitable day when some church or synagogue refuses to perform a gay marriage and the civil rights extremists get an activist court to prefer a newly-created "right" to the First Amendment guarantee of freedom of religion.

As Andrew suggested, removing the word "marriage" entirely from the law would require some hefty legislating in order to preserve the trappings of marriage for legal purposes while removing the religious element from it entirely. But it could be done. I too find it an insult to this nation's Christian heritage, but the church has survived far worse. And by removing "marriage" from the political/legal forum, the sanctity of marriage that most Christians solidly believe in would be preserved, each marriage being judged solely by the church which performed it. In a way, that's even more freedom from government interference than we presently have.

That way, I would be required to accept a gay union legally, but it would be up to my own conscience and religious conviction to decide whether or not I accept it as a sanctified marriage. It wouldn't stop anti-religious zealots from filing discrimination suits against pastors and rabbis who refuse to perform gay ceremonies, but it would cut any serious grounds for the suit out from under them. And either way, I'm sure you're right about how Muslim clerics would be differently treated.

Captain Soapbox said...

Lawhawk, exactly. And it makes me wonder what the actual real motives for the State of Connecticut wanting to be the ones to appoint the board or whatever it is, of the Catholic church there. A way to prepare for the inevitable "Larry wants to marry Barry but Father Pat won't" sort of situation?

I may be getting more paranoid as the years go by, but when I saw that hard on the heels of the Prop 8 kerfuffle, it made me wonder. And once they get the Catholics who would be next, the Jews? The Lutherans? Anyone who has a religion in which gay marriage is not really considered to be part of their faith? Like I said the Muslim angle would be interesting to say the least, and almost worth having some sort of protection law put into effect to be able to watch it happen, but I'm sure the ACLU would get them some manner of exemption on "cultural" grounds.

Now if you really want to confuse yourself to the point where your brain may explode, look up Israeli marriage laws sometime. They're so contradictory, confusing and with so many conditional states and downright loopholes that heads often do explode just at the mention of them. If things are confusing with the civil unions, gay marriages and straight marriages in the US, well they got nothing on Israeli law. Although the idea of de-linking marriage from law and politics made me think of them since in a way that's how it works there, but just in a way mind you. Again in an extremely Byzantine head exploding fashion.

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