California Supreme Court Upholds Prop 8; Rules Against Same-Sex Marriage

Well, it could be worse.

The California Supreme Court ruled today that Proposition 8, last November’s ballot initiative amending the California Constitution to forbid same-sex marriage, is legal. It also affirmed that marriages conducted between May 2008 (when the same court ruled that same-sex marriage was constitutional) and November were legal. Supporters of Prop. 8 had hoped for a one-two punch that included invalidation of the 18,000 so-called Rainbow Window marriages.

Prop. 8 opponents rested on the argument that Prop. 8’s stripping of extant rights from a “protected class” of people was such a gross alteration to the state Constitution that it constituted a revision, not an amendment, to the Constitution. Revisions require a completely separate process to be passed.

Does the “fundamental right” of the people to go to the polls and enact law by referendum supersede the “fundamental right” of a protected class to marry? Does the right of the people permit a majority of the electorate to remove rights from a minority? The ruling today suggests that, yes, a majority of the people can remove or limit the rights of a minority group. More on this later.

Let’s be clear: this is not a normal ballot initiative. The ballot measures we voted on last week? Those were standard-issue: permit the legislature to save more money; permit the legislature to redirect money. Prop. 8 was unlike any ballot initiative that California had seen before. It allowed a majority of voters to strip a minority of a right that majority already had. With today’s ruling, a dangerous precedent has been created: the referendum process and the right of the majority to make law through the ballot is officially more important than the rights of the minorities that the majority would seek to take away using the initiative process.

The court’s ruling is 185 pages long. Here’s a summary:

• The scope of the decision is limited to the question of whether or not Proposition 8 was an “amendment” or “revision” of California’s Constitution. The court did not rule on the legal legitimacy of same-sex marriage; that issue was decided last May.
• The marriages that occurred between last May and last November are still valid, since retroactively invalidating a lawfully-performed marriage would require due process and not merely the approval of voters.
• What is at stake here is not the fundamental rights of same-sex couples; the court affirmed that the rights are the same, but under Prop. 8, same-sex couples cannot have the word “marriage.”

That minority had better have a lot of money, because in order to get their rights back, they’ll have to mount a campaign to get another proposition on the ballot amending the Constitution to remove the previous amendment. Fortunately, that’s what they plan to do: Prop. 8 opponents plan to have another initiative on the ballot in 2010, this time repealing the amendment banning same-sex marriage.

Let’s be equally clear what the California Supreme Court is not saying. The court is not suggesting that same-sex marriage itself is inherently unconstitutional; it also is not suggesting that same-sex marriage itself is inherently constitutional. (Interestingly, the May 2008 decision already ruled that the language contained in Prop. 8 is discriminatory under the law; the statute in question contained exactly the same language found in Prop. 8, and back then, when it wasn’t an amendment, it was unconstitutional.) The court has merely adjudicated two issues: does Prop. 8 constitute an amendment, and does Prop. 8 apply retroactively? The majority opinion concluded by noting that, if Prop. 8 opponents are unhappy with today’s ruling, “if there is to be a change to the state constitutional rule embodied in that measure, it must ‘find its expression at the ballot box.’” The court has certainly not suggested that same-sex marriage can never be the law. In finding that Prop. 8 was an amendment, the court has said that the only proper way to invalidate an amendment is with another amendment; i.e., another ballot measure repealing the Prop. 8 amendment.

Only one judge dissented from the opinion. Judge Moreno expressed concern that a simple majority vote could unilaterally strip a minority group of its rights:

The rule the majority crafts today not only allows same-sex couples to be stripped of the right to marry that this court recognized in the Marriage Cases, it places at risk the state constitutional rights of all disfavored minorities. It weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority.

Judge Moreno calls the Equal Protection Clause “inherently countermajoritarian,” meaning that its purpose is not to accede to the will of the majority, but rather to ensure that anything the majority does allows for the protection of minority groups. The Clause prevents what John Stuart Mill called “the tyranny of the majority,” one of the dangers inherent in democracy. Under a democratic system, the majority — by its sheer size — is presumed to be correct. As we have seen with Prop. 8, the fact that a majority believes something does not necessarily make that thing true.

There has been some talk of amending the state constitution to alter the amendment process. This would be a good step in the direction of eliminating the back-and-forth that we will see with ballot initiatives for the next few years. Here’s an idea: making a distinction between amendments that due mundane things like alter the budget process and amendments that alter the status of individual liberties.

Breaking News: A very odd couple — former U.S. Solicitor General Theodore Olson (who argued for Bush in 2000’s Bush v. Gore) and David Boies (who argued for Gore in Bush v. Gore) have agreed to join forces and take up a federal court case challenging Prop. 8 under the Fourteenth Amendment’s “equal protection” clause. What else is interesting about this? Any case that adjudicates this issue would necessarily adjudicate both any other state law banning same-sex marriage and the federal ban on same-sex marriage. (The U.S. government currently does not recognize same-sex marriage as “marriage” for federal purposes.)

Big Doings in the Golden State

Earlier this summer, the California Supreme Court ruled gay marriage bans unconstitutional under state law. The Supreme Court gave the various state counties ninety days to find a system for implementing the ruling, which would require that the state grant same-sex couples the same rights to “marriage” that heterosexual couples have. A variety of conservative groups urged Attorney General Jerry Brown to obtain an injunction enjoining enforcement of the court ruling, pending the results of November’s Proposition 8. Proposition 8 is a proposed amendment to the state constitution which reads, in full, “Only marriage between a man and a woman is valid or recognized in California.” Brown refused, saying that getting an injunction would be difficult, and that same-sex marriage was the law of the land.

Brown further earned the ire of conservatives when he changed the title of the proposition from “Limit on Marriage. Constitutional Amendment” to “Eliminates Right of Same-Sex Couples to Marry Initiative. Constitutional Amendment.” This is actually the correct wording, since the state supreme court ruled that same-sex couples do have the right to marry, but the constitutional amendment would take away that right.

Meanwhile, Governor Arnold Schwarzenegger proved that he is just as tough with the State Assembly as he is with the Predator. The state is in a budget crisis that is very similar to the federal budget crisis that actually shut down non-essential federal offices in 1995. The Assembly is trying to find a way to close a $15 billion gap in the 2008-09 budget: Schwarzenegger wants to cut all state programs by 10% and keep tax rates where they are. Democrats want to keep state funding where it is and raise taxes. (California’s annual budget is a little over $100 billion.) Schwarzenegger, like George H.W. Bush before him, rode into Sacramento on a platform of “no new taxes,” funding his capital projects by floating bonds — bonds that will someday mature and whose holders will come calling.

In order to force the Democrats’ hand, Schwarzenegger has refused to sign any legislation into law until a budget is passed, which means “any budget that Schwarzenegger likes.” The governor has made one exception to this rule: he will sign into a law a bond issue that would provide $9 billion in funding for his pet project, a high-speed train between San Francisco and Los Angeles.

We’ve been told for years that such a train will be coming Real Soon Now. Arnold wants a legacy beyond the one he already has at Blockbusters around the nation.

California voters will also deal with parental notification for abortion, an initiative that was rejected in 2005 and 2006. Apparently proponents think that California’s voter base has changed wildly in two years?

Meanwhile, the battle for Schwarzenegger’s cybernetic chair is beginning already. San Francisco Mayor Gavin Newsom, Los Angeles Mayor Antonio Villaraigosa, and Attorney General Jerry Brown (formerly mayor of Oakland, Governor of California, and three-time presidential candidate) have all indicated that they would like to run for governor when Der Gubernator’s term is up in January of 2011.