Tuesday, May 26, 2009

Quick take on the California Same-Sex Marriage Decision

Mary L. Dudziak

An initial take on the California Supreme Court decision today upholding Proposition 8, which bans same-sex marriage. (I will revise later if needed after a more careful read of the court's very lengthy opinion.) My bottom line: opponents of same-sex marriage may have won the battle, but lost the war.
Importantly, in today's ruling, the court did not take up the basic question of whether there is a fundamental right to same-sex marriage under the state constitution, but rather the more narrow question of whether Proposition 8, which overturned the court's earlier ruling that there was such a right, was a constitutional amendment or a constitutional revision. Amendments are proper subjects for voter initiatives in California. Revisions, which are more fundamental changes, must go though a state constitutional convention. The court found that Prop. 8 was an amendment (and so was proper), rather than a revision. To get there, however, the court narrowly interpreted Proposition 8. [More below the fold.]

The court noted:
In analyzing the constitutional challenges presently before us, we first explain that the provision added to the California Constitution by Proposition 8...properly must be understood as having a considerably narrower scope and more limited effect than suggested by petitioners in the cases before us. Contrary to petitioners’ assertion, 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.
The court carved out space for the rights of same-sex couples protected in the Marriage Cases, emphasizing: "among the various constitutional protections recognized in the Marriage Cases as available to same-sex couples, it is only the designation of marriage — albeit significant — that has been removed by this initiative measure." (emphasis added). Taking into account the "actual limited effect of Proposition 8 upon the preexisting state constitutional right of privacy and due process and upon the guarantee of equal protection of the laws," (emphasis added), the court found Prop 8 not to be a constitutional revision.

What does all this mean? One possibility, especially when considered in light of the court's refusal to invalidate the marriages performed before Prop 8 went into effect (on the basis that Prop 8 was not meant to be retroactive), is that opponents of gay marriage have won the battle, but lost the war. It was only by narrowing the effect of Prop 8, thereby preserving many rights of same-sex couples in California, that the court reached this outcome. As life goes on in California, with 18,000 legally married same-sex couples, voters may well discover, as have residents of other states, that the sky will not fall. It will simply be a matter of time before Prop 8 is overturned by a new state initiative.

Full disclosure: I signed an amicus brief in the case arguing that Proposition 8 should be overturned.
Update: In addition to Andrew Koppelman's excellent post, Ilya Somin, weighs in, furthering a helpful line of posts of his questioning the "hollow hope" line of argument about gay rights and the courts.

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