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Posted by on May 27, 2009 in At TMV, Politics | 41 comments

California Supreme Court Upholds Proposition 8


For what it’s worth I’ve had the chance to review the decision and I have posted my thoughts and opinions under the fold.

Also, Bush v Gore rivals Ted Olson and David Boies will file suit in Federal Court to seek an injunction on Proposition 8 so the courts can review if the measure violates federal law. I am not sure if the court will take the case and if they do I doubt they will impose an injuction.

Federal courts tend to be pretty conservative on these issues and they may consider it a state issue.


The California Supreme Court has voted by a margin of 6-1  to uphold Proposition 8.

This means 3 of the 4 who voted for same sex marriage rights last year switched this time,

Marriages prior to the passage will remain in effect.

My thoughts below the fold.

I think those who have read my posts are well aware of my views on Proposition 8, same sex marriage and gay rights, but I will restate the fact that I strongly opposed Proposition 8 and find the denial of rights to people based upon their sexual orientation to be contrary to the things the USA is supposed to stand for.

Having said that I offer the following review/commentary on the ruling issued today.

For those who may not be as law oriented, the opponents of Proposition 8 raised three basic issues: 1) that this was a revision rather than an amendment and was thus invalid, 2) that this was a violation of the separation of powers because it shifted judicial power to the voters and away from the courts and 3) that it violated the equal protection rights.

Starting my review with argument #2, the court pretty quickly dealt with that one by stating that since the state Constitution clearly gives the voters and the legislature the power to amend the document then it is not a violation of the separation of powers doctrine for them to exercise that power.

I can’t really argue with that point and neither did the dissenting Justice Moreno.

The second major area they discuss is the revision principle. Just to review, under that California Constitution there are two ways to put amendments on the ballot. One is for the legislature to do so by a 2/3rds vote, the other is for people to get signatures from 8% of the voters.

The key issue is that if the proposed change is an amendment it can be put on the ballot either way, while if it is a revision it can only be put on the ballot by the legislature. Those opposing 8 made the argument that this was a revision because it altered a fundamental right of the people to marry.

I had put a lot of weight behind this argument but looking at the majority opinion I certainly can respect the way they reached their concusion. It is clear that in past cases the term revision means a pretty substaintial change to the document and with fairly extensive language.

For example in the past voters supported measures like Proposition 13 which took the power of taxation out of the hands of local government and put it in the hands of the voters. They passed bills to make major changes to the rights of criminals and the procedures which protected their rights. None of these were held to be a revision.

The only really major example of a revision was a 1911 measure which added about 22,000 words to a 60,000 word document, which was a pretty major change.

So I do think that since this particular change added only a few words to the document that it was reasonable to say it was not a revision. However I do think that a much better conclusion was reached by Justice Werdegar who concluded that while in this particular case she did not think it amounted to a revision that the court was wrong to conclude that there had to be a major scope to the change, that a major impact could happen with only a few words.

Indeed not only do I find his argument compelling but I would have probably joined Justice Moreno in finding that this was a revision for the reasons I had outlined in prior posts, that it impacts a major fundamental right. His analysis finds that the term marriage holds such a special significance in our society that to strip it away from same sex couples is to deny them a fundamental right based upon their suspect class.

He also places a great deal of emphasis on the equal protection argument which is rejected by the majority, holding that the right to the term is such that it is an integral part of the right to marriage which thus must be protected. While only one Justice bought in to my basic arguments I am glad at least one did.

At the same time, I do not think the majority view was entirely unreasonable, even if I think it was wrong. An example I used in discussing this with a close friend was to compare two imfamous civil rights cases, that of Dred Scott and the Plessy decision. Dred Scott held that blacks were not citizens while Plessy held that separate but equal was acceptable.

In both instances I would have dissented, finding the rulings entirely wrong. But in the case of Scott, I would have understood how, in the absence of the 13th, 14th and 15th amendments, that the court could have concluded what they did. In the case of Plessy, no such allowance could be made since those amendments clearly prohibited the discrimination.

In this case, while I do think that the right to marriage is a fundamental one and that it includes the use of the term marriage, I can accept the logic of others that says the issue is the rights of the institution, not the use of the word itself. Indeed I was once in that camp and while my views have changed I cannot fault others who have not.

But not all is lost here. If you look at the ruling the justices take several opportunities to communicate within the ruling. For example on Page 3 of the ruling they make a rather detailed statement to discern between their own personal viewpoints on the issue and their duty as judges to uphold things they do not like.

This struck me as unusual and in discussions with some legal scholars I am told it is quite extraordinary to make such a statement.

Similarly, they take care to discuss a proposed initiative which would have stripped the legislature of the right to extend marriage benefits to same sex couples and to contrast that with their decision here. The clear suggestion is that such a move would have been struck down. Again, this is rather unusual.

Finally they take time to discuss the fact that many people find the current initiative process to be flawed and hint at the idea that it should be changed. This is a little more common, for the court to prod the legislature to make changes, but combined with the above it is pretty significant.

So is a suggestion that there be an amendment to the document to limit what rights can be changed by mere amendment (a provision that is part of many other State Constitutions).

All in all I am unhappy about the ruling and I thinkt he courts got it wrong. But I cannot say that they were entirely unreasonable in their conclusion. Further I think it is pretty clear the court took pains to express their displeasure at the decision, even as they recognized the need to make it.

Finally, I take solace in the fact that time is on the side of those who support these rights. I will discuss future steps in another post.