California court upholds Prop 8

posted at 1:25 pm on May 26, 2009 by Ed Morrissey

In what looks like a Solomonic and almost unavoidable conclusion, the California Supreme Court acknowledged that voters in the state properly amended the Constitution to bar single-gender marriage. The ruling signals a victory for democracy over judicial fiat, as Proposition 8 reversed the same court’s declaration of the right to gay marriage. The court split the baby, figuratively speaking, by reaffirming the marriages conducted by California in the interim:

The California Supreme Court today upheld Proposition 8′s ban on same-sex marriage but also ruled that gay couples who wed before the election will continue to be married under state law.

The decision virtually ensures another fight at the ballot box over marriage rights for gays. Gay rights activists say they may ask voters to repeal the marriage ban as early as next year, and opponents have pledged to fight any such effort. Proposition 8 passed with 52% of the vote.

Although the court split 6-1 on the constitutionality of Proposition 8, the justices were unanimous in deciding to keep intact the marriages of as many as 18,000 gay couples who exchanged vows before the election. The marriages began last June, after a 4-3 state high court ruling striking down the marriage ban last May.

In an opinion written by Chief Justice Ronald M. George, the state high court ruled today that the November initiative was not an illegal constitutional revision, as gay rights lawyers contended, nor unconstitutional because it took away an inalienable right, as Atty. Gen. Jerry Brown argued.

The 6-1 split is significant.  The previous ruling declaring gay marriage a right under California’s constitution was very narrow.  Three of the judges who voted for that decision went the other direction today.  They had little choice.  California allows constitutional amendments by referenda, and the backers of Proposition 8 followed the law scrupulously in getting it on the ballot.

Confirming the marriages also appears to be the correct decision.  When the couples got their licenses and had the ceremonies performed, the law in the state (as dictated by the court) allowed for those marriages.  Proposition 8 changed the law, but it cannot apply ex post facto.  Since those licenses were valid and backed by the state at the time they were issued, the court had little choice but to approve them — and their unanimous judgment speaks to the common sense conclusion.

However, that does set up an interesting point for a federal appeal.  If the plaintiffs in this case argue against this dichotomy on an equal-protection basis, a federal court might find that intriguing enough to consider.  Even if that doesn’t work, the plaintiffs plan on a new referendum that will reverse Proposition 8.  Something tells me that this will be a more or less permanent feature on California’s ballots for the foreseeable future.

Update: I meant judicial fiat, not legislative fiat.  Thanks to RBJ in comments for correcting me.


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kangjie on May 27, 2009 at 2:13 PM

What are you trying to say?

Itchee Dryback on May 27, 2009 at 2:39 PM

Bobbertsan on May 27, 2009 at 1:42 PM

That ruling was in reference to interracial marriage between a man and a woman?

How does that apply?

Itchee Dryback on May 27, 2009 at 2:47 PM

That said, how should we treat gays in public policy – by scriptural reference or by common consent? I think the common consent is what will happen over time.

trailboss on May 27, 2009 at 1:05 PM

What do you mean “over time”? Thats whats happening now and has been for quite a while….do you think that gays are being treated by scriptural policy???

Itchee Dryback on May 27, 2009 at 2:51 PM

780 comments, +- 5.

MadisonConservative on May 26, 2009 at 1:37 PM

Damn. So close.

MadisonConservative on May 27, 2009 at 4:13 PM

That ruling was in reference to interracial marriage between a man and a woman?

How does that apply?

Itchee Dryback on May 27, 2009 at 2:47 PM

I don’t think it does, that’s the point. Gay marriage supporters like to quote Loving v Virginia as though the court said “anybody should be able to marry anybody they want and the government has no say in the matter.” That’s not exactly how I read it.

Assuming I understand you correctly, I’m not arguing with you, I agree with you.

Bobbertsan on May 27, 2009 at 4:29 PM

Bobbertsan on May 27, 2009 at 4:29 PM

While we’re on the same page, why do you think it is that when a question like.. ” In your opinion,who should not be allowed to marry?” is asked of a gm supporter, they never answer?

I can’t imagine why. It seems like an obvious question to apply to their usual line of reasoning. Would someone answer it?

Itchee Dryback on May 27, 2009 at 4:49 PM

What do you mean “over time”? Thats whats happening now and has been for quite a while….do you think that gays are being treated by scriptural policy???

Itchee Dryback on May 27, 2009 at 2:51 PM

I think that ‘scriptural policy’ is how many people look to continue the fight against gay marriage, largely because they cannot or will not engage their brains in dealing with it.

Good public policy may very well have roots (and often does) in scripture, but to have to resort to scripture to justify public policy because rational arguments are insufficient is bad mojo.

trailboss on May 27, 2009 at 5:25 PM

I think that ’scriptural policy’ is how many people look to continue the fight against gay marriage, largely because they cannot or will not engage their brains in dealing with it.

Good public policy may very well have roots (and often does) in scripture, but to have to resort to scripture to justify public policy because rational arguments are insufficient is bad mojo.

trailboss on May 27, 2009 at 5:25 PM

Huh… It would seem like the rational solution would be the compromise of civil unions.
Whats the rational argument against that position?

Imo, it doesn’t seem like the stereotype you’re promoting is even remotely accurate. Are you saying that the majority of people in this country that are against gay marriage are basing their reasonings on scripture? what of the others? Do you think there are any rational reasons to resist gay marriage?

Itchee Dryback on May 27, 2009 at 5:57 PM

Imo, it doesn’t seem like the stereotype you’re promoting is even remotely accurate. Are you saying that the majority of people in this country that are against gay marriage are basing their reasonings on scripture? what of the others? Do you think there are any rational reasons to resist gay marriage?

Itchee Dryback on May 27, 2009 at 5:57 PM

I’m not promoting any stereotype in saying that many people feel one way or another, I’m speaking from my personal experience.

It may be that the rational compromise is civil unions, and perhaps the ‘gay community’ will accept that and move on; my guess is that the lack of complete equality will continue to irritate a significant enough portion of gays that such a compromise will not suffice, and they will continue to seek ‘marriage.’

Do I think there are rational reasons to resist gay marriage? I would think so, but the arguments I have seen so far all have serious flaws. The main one being the ‘protect the children’ argument seems on it face to be supportable in terms of children’s right to a ‘normal’ family, but we allow and even condone so many permutations of family ( two parent, one parent, one dad, one mom, one grandparent, an aunt or uncle or both, adoptive non-biological parent(s), the hollywood version of a single mom that takes in an abandoned orphan, etc, etc, etc)that this argument gets pretty watered down.

trailboss on May 27, 2009 at 6:43 PM

I’m not promoting any stereotype in saying that many people feel one way or another, I’m speaking from my personal experience.

Sorry for the misunderstanding, but it seemed like you were implying that when you said….”I think that ’scriptural policy’ is how many people look to continue the fight against gay marriage, largely because they cannot or will not engage their brains in dealing with it.”

That just seems like lumping people into a stereotype.

..my guess is that the lack of complete equality will continue to irritate a significant enough portion of gays that such a compromise will not suffice, and they will continue to seek ‘marriage.’

How do you define the bolded part?..I only ask because it would seem that civil unions would provide just that and continuing to demand more would be a position that stemmed from extreme fundamentalist ideology that refuses to be rational…possibly because they refuse to engage their brains?

Do I think there are rational reasons to resist gay marriage? I would think so, but the arguments I have seen so far all have serious flaws. The main one being the ‘protect the children’ argument seems on it face to be supportable in terms of children’s right to a ‘normal’ family, but we allow and even condone so many permutations of family ( two parent, one parent, one dad, one mom, one grandparent, an aunt or uncle or both, adoptive non-biological parent(s), the hollywood version of a single mom that takes in an abandoned orphan, etc, etc, etc)that this argument gets pretty watered down.

Your examples seem repetitive. 2 parent (normal)..one parent, one dad, one mom, (the same thing)..one grandparent, one aunt, one uncle ( still normal families..parents died, separated, alcohol/drug problems)..adoption and taking in a abandoned orphan are really the same thing for all practical purposes. All normal situations. 2 gays and that lifestyle?…not so much.

trailboss on May 27, 2009 at 6:43 PM

Itchee Dryback on May 27, 2009 at 7:48 PM

Finally California’s treating itself like part of America again.

Ryan Gandy on May 28, 2009 at 12:42 AM

The law has much to do with those qualities for straight couples, and there is little the state can do to interfere with their right.

dedalus on May 27, 2009 at 8:38 AM

It absolutely does not. I don’t recall ever having to tell the state, or prove to them, that I was in love with my fiancee when we applied for our marriage license. All I had to do was meet the legal requirement. Not one of them being “you have to be in love, sexually attracted, and physically attracted”. There is no test for that. People get married for convenience all the time. Nothing illegal about it.

Fed45 on May 28, 2009 at 1:17 AM

There are licenses for guns and for peaceable assembly. Yet, individuals are protected by rights to those.

dedalus on May 27, 2009 at 9:10 AM

There are licenses to practice law and medicine, too. What’s your point?

Fed45 on May 28, 2009 at 1:21 AM

There is no denying that homosexuals are different than heterosexuals.

Really? Then kindly explain Anne Heche to me. And while your at it, Elton John (who was once married to a WOMAN). You can’t have it both ways…some people being “born” gay, and some people making the choice to be gay. See, this is why you can’t apply the 14th Amendment. I have no choice over my skin color (okay, Michael Jackson being the exception). I’m either a cracker, or I’m Black, or Asian, or Hispanic, or (fill in racial skin color here) or I’m not.

Now if you say they are different because they choose to live a different lifestyle, no argument. But that doesn’t grant one special rights.

Look, I have no objection to two consenting adults that aren’t from the same blood line, choosing to live together and getting the same benefits that marriage brings. But, the reality is…the law is the law in every state. You can’t have the courts making up new laws. As for the Prop 8 issue…well like progressives like to say “we live in a democracy”. Which means “majority rules” (which is why, technically, this country is not a democracy. Because in a democracy, the minority NEVER gets anything they want). Want the same benefits? Work to change the laws….not have the courts make up new laws.

I happen to think states should get out of the marriage business….have everything be a civil union and the state have no opinion on the make up of that civil union (incest, and poligamy laws notwithstanding)

Fed45 on May 28, 2009 at 1:39 AM

What are you trying to say?

Itchee Dryback on May 27, 2009 at 2:39 PM

What I am trying to say can be summed up like this

And so my king died, and my brothers died, barely a year ago. Long I pondered my king’s cryptic talk of victory. Time has proven him wise, for from free Greek to free Greek, the word was spread that bold Leonidas and his three hundred, so far from home, laid down their lives. Not just for Sparta, but for all Greece and the promise this country holds.
You know what I’m sayin

kangjie on May 28, 2009 at 9:56 AM

.one grandparent, one aunt, one uncle ( still normal families..parents died, separated, alcohol/drug problems)..adoption and taking in a abandoned orphan are really the same thing for all practical purposes. All normal situations. 2 gays and that lifestyle?…not so much.

Itchee Dryback on May 27, 2009 at 7:48 PM

Yes, these are ‘normal.’ But why? They are all far short of the ideal mother/father norm used to argue against gay marriage, and yet are ignored in that argument. Weak.

trailboss on May 28, 2009 at 11:39 AM

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