Alex Blaze

California Supreme Court Upholds Proposition 8

Filed By Alex Blaze | May 26, 2009 1:00 PM | comments

Filed in: Marriage Equality, Politics
Tags: bisexual, California, gay marriage, judges, lesbian, LGBT, marriage equality, Prop. 8, rights, same-sex marriage, trangender

Updated below the jump


The California Supreme Court just ruled that Prop 8 is a fully legal amendment to the constitution. Watch out for your rights, other minorities, because they're all up for a vote now.

Same-sex marriages that were performed last year, though, are still legal.

I'll keep updating this thread as we know more.

Update: Here's the decision in pdf.

Update 2: Statements are rolling in. Here's HRC:

"Today's ruling is a huge blow to Americans everywhere who care about equality. The court has allowed a bare majority of voters to write same-sex couples out of basic constitutional protections," said Human Rights Campaign President Joe Solmonese. "This ruling is painful, but it represents a temporary setback. There will be a groundswell to restore marriage equality in our nation's largest state, and HRC will not give up until marriage equality is restored in California."

One significant effort already underway is a strategic partnership between HRC and California Faith for Equality (CFE), a statewide group established to educate, support and mobilize faith communities on LGBT equality. The partnership joins CFE and its 6,000 supporting faith leaders with both HRC's Religion and Faith Program expertise as well as HRC's National Field Department to broaden, diversify and deepen religious support for marriage equality in California.

"This ruling couldn't be more out of step with what's happening across the country," said Solmonese, pointing to recent marriage victories in Iowa, Vermont and Maine. "We have no choice but to return this basic question of fairness for the estimated 1 million LGBT Californians back to the voters."

And the LA Gay and Lesbian Community Center:

"Today, our Supreme Court sent a mixed and troubling message. While upholding the legal marriages of the 18,000 same-sex couples who married in California, the ruling establishes that all Californians are NOT entitled to equal protection of the law. This is a sad day for our state and a setback for the cause of freedom and fairness.

But it's also important to keep this in perspective. Every noble struggle known to man or woman has been filled with losses--temporary defeats that people had to endure and overcome. We must pick ourselves up and move forward, knowing that justice ultimately will prevail and the right to marry will one day be ours forever.

Fortunately, this loss comes amidst a veritable tide of progress in many other state supreme courts and legislatures--a tide that cannot be turned back, no matter today's decision. Not only are courts and legislatures recognizing that it's wrong to discriminate against any group of people by denying them the fundamental freedom to marry the one they love, but now even a majority of Americans agree. Most people in the nation now believe that same-sex couples should be treated equally under the law.

That is enormous progress and we e cannot let one election, one court case, one defeat - or even many defeats - stop us. And we must not let such challenges limit our dreams. Those who came before us and who could never imagine our successes did not give up. We owe the same dedication to those who are yet to follow.

Most importantly, we cannot afford to lose sight of the bigger picture. Ours is not a fight simply for the freedom to marry. Ours is a fight for full equality; full equality and nothing less."

The Courage Campaign:

Last week, we asked our members to vote on which year -- 2010 or 2012 -- the Courage Campaign should support going back to the ballot to restore marriage equality. Your collective response was overwhelming -- 82.5% support a 2010 ballot measure. As a result, the Courage Campaign is announcing today its strong support for a 2010 initiative, while respecting that partner organizations are still discussing and deliberating this very important question.

In response to the court's decision, the Courage Campaign will hit the California airwaves in the next 72 hours with a 60-second TV ad version of "Fidelity" -- the heartbreaking online video viewed by more than 1.2 million people, making it the most-watched video ever in the history of California politics.

We are launching this provocative new TV ad in the spirit of Harvey Milk's call to "come out, come out wherever you are" and proudly tell the stories of the people most affected by the passage of Prop 8 -- in moving images set to the beat of Regina Spektor's beautiful song.

Be fearless. Watch this 60-second "Fidelity" TV ad now and -- if you want more people to see it -- contribute $25, $50, $100, $250 (or as much as you can afford) to expand our ad buy immediately in Bakersfield, Fresno, Los Angeles, Sacramento, San Diego and San Francisco ASAP:

Lt. Governor John Garamendi:

"Today we lost an important battle, but on this disappointing day, it's worth remembering that the final outcome of this struggle has already been determined. Time is on our side, and Californians will one day soon repeal Proposition 8. Patti and I have been married for 43 years, and we stand shoulder-to-shoulder with the LGBT community and their allies as they work to convince the electorate that all Californians, regardless of sexual orientation, deserve access to marriage and equality. While we will always face roadblocks, our society journeys down a path of increased equality under the law."

Kate Kendell's statement is in the post above.

Update 3: Get a load of this part of the decision. Prop 8 isn't just an amendment, but it doesn't even deal with a fundamental right. Didn't In re Marriage Cases say that the right to choose whom to marry was fundamental?

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.

In the context of domestic partnerships for same-sex couples that had the full state-level rights of marriage, the court said this last year:

The right to marry represents the right of an individual to establish a legally recognized family with the person of one's choice, and, as such, is of fundamental significance both to society and to the individual.

Ellen Anderson also pointed out:

Retaining "marriage" for straights and giving "domestic partnerships" to gays will "impose appreciate harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples."

So what changed?

Update 4: More statements. Evan Wolfson's Freedom to Marry seems to have gotten their wires crossed:

New York, May 26, 2009 --The California Supreme Court today ruled that Proposition 8 is invalid because the California Constitution does not permit the fundamental constitutional rights of a minority to be stripped away by a simple majority vote.

"The California Supreme Court did its job today by protecting the California Constitution, the ultimate expression of the will of the people, and rightfully overturning Proposition 8," said Evan Wolfson, executive director of Freedom to Marry and author of Why Marriage Matters: America, Equality and Gay People's Right to Marry. "The freedom to marry is now restored in California."

The decision states that all marriages by gay couples in 2008 will continue to be respected by state laws, and gay couples can apply for marriage licenses starting immediately. Rallies and opportunities for people to voice their support for marriage and get involved with efforts to win the freedom to marry across the country are occurring over the next week in numerous cities in California and around the nation.

"The narrow passage of the unjust and unconstitutional Proposition 8 last November reminded us that we all must work for the freedom to marry every day by talking about why marriage equality matters," Wolfson said. "The court again affirmed that marriage is a fundamental right that should not be denied to loving and committed gay couples anywhere."

If only.

The Family Equality Council, where TBP contributor Dustin Kight works:

"Today's disappointing ruling from the California Supreme Court underscores how incredibly important it is for LGBT people, especially parents, to continue telling our stories, connecting with other families about our shared hopes, dreams and concerns, changing hearts and minds," said Jennifer Chrisler, executive director of Family Equality Council. "Our visibility and actions as a community have resulted in a seventeen point gain in just five years in support of marriage equality nationwide. Our responses to the Court's ruling will build on that momentum. LGBT parents know concretely how inequality hurts our families. We will continue working for full equality because our families deserve nothing less. It's a lesson we get to teach our children--through struggle comes progress--and so we look to the future and prepare to make marriage a reality for our families in California once again. As an ever-growing community of LGBT parents, family and friends, we will close this chapter on American history with justice and equality at the end."

And SoulForce will be staging a sit-in tonight:

"My husband and I were married on Zuma Beach in Malibu on June 17, 2008, with our three children and a dozen close friends by our side. We cried our way through our vows, and sang James Taylor's 'You've Got A Friend' with everyone who came to love and support us," said Jeff Lutes, Soulforce Executive Director. "We are heartbroken for all those couples in California, and around the country, who have been denied the fundamental right to marry the person they love. But today's ruling does absolutely nothing to weaken our resolve. We are more determined than ever - we will win full civil equality under the law for lesbian, gay, bisexual, and transgender people - make no mistake about it. We must continue to expose and resist the direct link between religious dogma and the attack on our human rights."

Soulforce organizers in Colorado will stage a nonviolent direct action outside Denver's Wellington E. Webb Municipal Building this afternoon. Approximately thirty minutes into the event, several couples and individuals will stage a sit-in at Denver's clerk and recorder office to remind the public that LGBT people throughout the United States are still denied equal protection in matters governed by civil law. Several are expected to be arrested for nonviolent civil disobedience.

Update 5: I'm already hearing rumors that the lone dissenter, Carlos Moreno, may be the target of the right in a recall. Ugh. Especially considering he was on the short list to replace Souter.

Here's part of his dissenting opinion:

I realize, of course, that the right of gays and lesbians to marry in this state has only lately been recognized. But that belated recognition does not make the protection of those rights less important. Rather, that the right has only recently been acknowledged reflects an age-old prejudice (Marriage Cases, supra, 43 Cal.4th at pp. 821-822, 846, 853) that makes the safeguarding of that right by the judiciary all the more critical. As the Supreme Court of Iowa recently observed: "[G]ay and lesbian people as a group have long been the victim of purposeful and invidious discrimination because of their sexual orientation. The long and painful history of discrimination against gay and lesbian persons is epitomized by the criminalization of homosexual conduct in many parts of this country until very recently. [Citation.] Additionally, only a few years ago persons identified as homosexual were dismissed from military service regardless of past dedication and demonstrated valor. Public employees identified as gay or lesbian have been thought to pose security risks due to a perceived risk of extortion resulting from a threat of public exposure. School-yard bullies have psychologically ground children with apparently gay or lesbian sexual orientation in the cruel mortar and pestle of school-yard prejudice. At the same time, lesbian and gay people continue to be frequent victims of hate crimes. [Citation.]" (Varnum v. Brien, supra, 763 N.W.2d 862, 889.)

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 6: Here's another opinion from a lawyer at DailyKos:

In last year's landmark 4-3 decision, In re Marriage Cases, the California Supreme Court decided that same-sex couples have a fundamental right under state law to every single advantage that heterosexual couples do, including the right to call their legal union "marriage."

Today, the court unanimously upheld the substantive fundamental right. Liberal to conservative, they all now accept it. They construed Prop 8 as narrowly as possible: as a initiative that addressed what we would label these relationships that we normally call marriage. The voters said that we can't call these relationships "marriage" when they involve same-sex couples. That's an insult to gays and lesbians and I hope and believe that it will not last. But note what this does not say.

Prop 8, now that the Supreme Court has stripped it down to a bare bone, does not say any of the following:

(1) It does not say that any provision of California law that invokes the label marriage does not also apply to these "civil unions" or whatever we call them -- how about "marrijezz"? -- that same-sex couples will henceforth undertake.

(2) It does not even say that these legal relationship aren't marriages. It just says that the voters decided that in California, if they occurred after a certain date, we aren't going to call them that. This isn't a minor point: it means that if a couple that has had a California "marrije" leaves the state, they have the right to say that they are "married" and have a correctly spelled "marriage" and -- when the Full Faith and Credit case eventually comes down -- have the same right to full faith and credit as does anyone from another state who got officially and legally married.

(3) It doesn't say that the participants in "marrijezz" can't call each other "husband" or each other "wife" -- or that they can't legally demand to be able to call themselves husbands and wives. This was, in the eyes of the California Supreme Court, entirely about cutting a particular tag off a dress before allowing same-sex couples to buy it. Do you think that the "this is called a marriage" tag is the same as the "I can call this man my husband or this woman my wife" tag? Nope -- that's a different tag. If voters want to eliminate the words "husband" and "wife" from same-sex partners, they have to pass a new initiaitve. Does that start to convey a sense of how deeply the Court carved down Prop 8 today?


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I just lost my faith in justice.

it's time to PEACEFULLY take to the streets.

I reacted similarly at first, with irritation (to put it kindly) at the CA SJC. But thinking about it some more, I think that the way this decision came down was the only way the SJC could protect marriage equality at all in CA.

If they struck down Proposition 8 on the basis of it being improperly conducted, the pro-Prop 8 folks would have just come back and made sure they dotted all their i's this time. By compromising (which is what the SJC did), the court allowed for the potential of repealing that amendment in a few years, when more of the public might be in favor. Add a couple more states to the marriage equality list (NH, WA, OR, NM, IL, I'm looking at you...) and maybe the general public in CA will be more amenable to a repeal effort.

It would also help if we weren't conducting a repeal effort in the midst of a big historic election, blah blah blah. While all the liberals in CA were busy getting Obama elected (and rightfully so, since CA was never in play for McCain), the conservatives focused all their energy on Prop 8. Do the repeal effort when the whole of the liberal might can focus on this one issue.

Wow, it is really time to worry now. What right will a small group lose next?
IT is definitely time to take to the streets. I hope that any who can will make sure that they purchase nothing produced in California and let stores know that you intend to not purchase California products or services.

Pretty difficult if you live in California, and want to eat. I s'pose I could find imported tortillas. Also, the economy here is in bad enough shape. In a rough economic scenario, marginalized employees like TG folk are first to fall. Remember, spanking California spanks EVERYONE who lives here.

I say take to the streets, outreach to religious minorities, build up the war chest (there MUST be more queers than Mormons) and fight, fight on.

Oh, please, what minorities? As if they're actually going to strip racial minorities and women out of their rights. Much less the religious minorities.

All the minorities that actually are open to victimization (which are considered socially insignificant, like we are, to begin with)were right beside us, anyways. And they don't have even the measly political power the LGBT community has.

I'm just pleased that Moreno wrote such a beautiful dissenting opinion.

And if I have to go through all these vapid pep talks about how we'll "win the war" once more, I will have to carve my ears into deafness.

CatherineCC | May 26, 2009 2:42 PM

The dissenting opinion was well written...

Thus, under the majority’s view, it is not clear what sorts of state constitutional constraints limit the power of a majority of the electorate to discriminate against minorities. As petitioners point out, “imagine if Perez v. Sharp, 32 al.2d 711 (1948), striking down California’s ban on interracial marriages, had been decided on state constitutional grounds rather than federal constitutional grounds. And imagine if a bare majority had attempted to overturn that landmark ruling by enshrining the ban into the Constitution.” Other equally unattractive hypotheticals suggest themselves.

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). While the federal Constitution would likely bar these initiatives, the California Constitution is intended to operate independently of (art. I, § 24), and in some cases more broadly than its federal counterpart.

The majority criticizes petitioners’ position because “under petitioners’ approach, the people would have the ability ? through the initiative process ? to extend a constitutional right to a disfavored group that had not previously enjoyed that right, but the people would lack the power to undo or repeal that very same extension of rights through their exercise of the identical initiative process.”
Whether or not the above accurately characterizes petitioners’ position, it does not accurately describe mine. The scenario of a majority of the electorate giving and then taking away rights does not implicate my objections in the present case: that Proposition 8 entirely undermines the countermajoritarian nature of the equal protection clause and usurps the judiciary’s special constitutional role as protector of minority rights. Therefore, without deciding cases not before us, my reasons for concluding that Proposition 8 attempts a constitutional change that can only be accomplished through revision do not apply to a situation in which an electoral majority grants and then repeals rights.


The majority’s holding essentially strips the state Constitution of its independent vitality in protecting the fundamental rights of suspect classes. And if the majority does not avow that such broad constitutional changes could be made by amendment, but only more “limited” ones, then I disagree with such an implicit distinction. As discussed, denying gays and lesbians the right to marry, by wrenching minority rights away from judicial protection and subjecting them instead to a majority vote, attacks the very core of the equal protection principle.

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.

Bella Morrow | May 26, 2009 3:25 PM

I think that the issue needs to be argued from a different angle. My church would perform same-sex marriages if it were allowed to. Thus, I believe that not allowing same-sex marriage is a violation of religious right.

We need to meet them on their ground. I would like to see the anti-equality folk try to create a litmus test for what constitutes religious freedom.

I am not a lawyer just a little Unitarian Universalist who wants to get married.

Look what I found at the end of the opinion under a section labeled as NOT INTENDED FOR PUBLICATION; Priceless--ring them phones, I say, ring 'em.

"Counsel who argued in Supreme Court (not intended for publication with opinion):

Kenneth W. Starr
24569 Via De Casa
Malibu, CA 90265-3205
(310) 506-4621

Shannon P. Minter
National Center for Lesbian Rights
870 Market Street, Suite 370
San Francisco, CA 94102
(415) 392-6257

Michael Maroko
Allred, Maroko & Goldberg
6300 Wilshire Boulevard, Suite 1500
Los Angeles, CA 90048
(323) 653-6530

Therese M. Stewart
Deputy City Attorney
City Hall, Room234
One Dr. Carlton B. Goodlett Place
San Francisco, CA 94102-4682
(415) 554-4708

Raymond C. Marshall
Bingham McCutchen
Three Embarcadero Center
San Francisco, CA 94111-4067

Christopher E. Krueger
Assistant Attorney General
1300 I Street, Suite125
Sacramento, CA 94244-2550
(916) 445-7385