The California Supreme Court upheld a ban on same-sex marriage today, ratifying a decision made by voters last year that runs counter to a growing trend of states allowing the practice.
The decision, however, preserves the 18,000 marriages performed between the court’s decision last May that same-sex marriage was lawful and the passage by voters in November of Proposition 8, which banned it. Supporters of the proposition argued that the marriages should no longer be recognized.
Today’s opinion, written by Chief Justice Ronald M. George for a 6-to-1 majority, said that same-sex couples still have the right to civil unions, which gives them the ability 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.” But the justices said that the voters had clearly expressed their will to limit the formality of marriage to heterosexual couples.
Justice George wrote that Proposition 8 did not “entirely repeal or abrogate” the right to such a protected relationship, but argued that it “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.”
Heated reaction to the decision began immediately, with protestors blocking traffic in front of San Francisco City Hall, their hands locked.
Shannon Minter, the legal director for the National Center for Lesbian Rights, called the decision “a terrible blow to the thousands of gay and lesbian Californians who woke up this morning hoping and praying their status as equal citizens of this state would be restored.” The decision, he added, “made it painfully clear that we must go back to the voters to restore equality.”
Those who backed Proposition 8 were elated. Andrew M. Pugno, general counsel for ProtectMarriage.com, the leading group behind last year’s initiative, said he and his allies were “very gratified” by the decision. “This is the culmination of years of hard work to preserve marriage in California,” he said in an e-mail message. “The voters have decided this issue and their views should be respected.”
The same court had ruled in May that same-sex couples enjoyed the same fundamental “right to marry” as heterosexual couples. That sweeping 4-3 decision provoked a backlash from opponents that led to Proposition 8, which garnered 52 percent of the vote last November after a bitter electoral fight.
The opinion marks a new round in the long-running battle in California over the issue, and will almost certainly lead to a counter-initiative intended to overturn Proposition 8, which changed the state constitution, as early as next year.
The opinion focused on whether the use of a voter initiative to narrow constitutional rights under Proposition 8 went too far.
Supporters of same-sex marriage, who filed several suits challenging the proposition, argued that the change to the state’s constitution was so fundamental that the initiative was not an amendment to the constitution but a “revision,” a term for measures that rework core constitutional principles.
Revisions, under California law, cannot be decided through a simple signature drive and majority vote, which is what led to Proposition 8; they can only be placed on the ballot with a two-thirds vote by the legislature.
But the justices said the proposition was an amendment, not a revision. It has historically been rare for the state’s courts to overturn initiatives on the ground that they are actually revisions, and many legal scholars deemed the challenge against Proposition 8 a long shot.
The question of whether Proposition 8 was an amendment or revision was the centerpiece of the oral arguments before the State Supreme Court during its hearing on March 5.
The justices who had issued the ringing support of same-sex marriage in 2008 presented a far less supportive front during the three-hour hearing. A number of justices who had voted in the majority in the 2008 case, particularly Joyce L. Kennard, strongly suggested in their questions from the bench that they were reluctant to overturn the will of the voters or to undercut the initiative process.
In questions that clearly anticipated the logic of today’s majority opinion, the justices had seemed to be seeking a middle ground that would allow the rights they had affirmed the year before to be preserved in the form of civil unions, which would be different from marriage in name only. Justice Kennard suggested that the substantive rights of gays were the same after the proposition, and all that had changed was “the label of marriage.”In questions that clearly anticipated the logic of today’s majority opinion, the justices had seemed to be seeking a middle ground that would allow the rights they had affirmed the year before to be preserved in the form of civil unions, which would be different from marriage in name only. Justice Kennard suggested that the substantive rights of gays were the same after the proposition, and all that had changed was “the label of marriage.”
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