Wednesday, May 27, 2009

D-Day: California's Proposition 8

In this case, D is for decision. And yesterday morning, the California Supreme Court made a big one: it ruled that Prop 8, the voter-approved initiative limiting marriage to a man and a woman, was a valid change to the California Constitution. (Prior IntLawGrrls posts available here.)(photo credit). While activists and disappointed LGBT people are taking to the streets in their hometowns and blowing up the social networking sites, it is worth pointing out that there is still hope after Strauss v. Horton.
Positively, the court held that:
► The fundamental constitutional rights of same-sex couples as previously announced by the court in In re Marriage Cases remained unchanged by Prop 8, which was narrow in that it only restricted the use of the term "marriage" to opposite sex couples.
► Prop 8 only applies prospectively; the 18,000 marriages that occurred prior to November 5, 2008, remain valid.
► The court did not decide whether same-sex couples that were lawfully married in other states would have their marriages recognized by the State of California.
In the aftermath of the otherwise disappointing decision, the key is to remember that this case was about "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." The issue was not whether same-sex marriage should be legal in California. Of course, common sense says the two issues can hardly be separated, yet with our legal blinders, we can, and must separate such issues.
Ultimately, the decision is not fatal to same-sex marriage in California; it punts the issue back to the voters to decide whether to repeal Prop 8 in the same way it was passed, via ballot initiative, in the coming years. It also opens the door for a federal challenge, which is reportedly already underway. And for many Californians, it begs the question whether a clear revision to the state Constitution should be considered that would modify the state's initiative system.


Reuven said...

Note to supporters of same-sex marriage: Don't waste any money on EQCA, the organization that ran the ineffective and disastrous "No on 8" campaign. I gave them several thousand dollars and feel ripped off. Now they want me to support the very people who voted to end my marriage.

Diane Marie Amann said...

Great post, Kate; thanks!
See this news about a suit filed today in U.S. District Court in San Francisco, challenging Prop 8 on federal constitutional grounds. Among the attorneys filing suit was Theodore Olson, Solicitor General during the first part of the Presidency of George W. Bush.