A Narrow and Limited Exception

Timothy Kincaid

May 26th, 2009

From the decision to let Prop 8 stand (pdf):

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.

Or, in other words, “What’s the problem? It’s all the same water. Who cares what fountain it comes from?”

Those who object to my comparison of separate recognition for gay couples to a symbol of racial inqualities in our Nation’s history may wish to heed the eloquence warning of Justice Moreno’s dissent:

The rule the majority crafts today not only allows same-sex couples to be stripped of the right to marry that this court recognized in the Marriage Cases, it places at risk the state constitutional rights of all disfavored minorities. It weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority. I therefore dissent.

As civil rights hero John Lewis said in 2003,

I have fought too hard and too long against discrimination based on race and color not to stand up against discrimination based on sexual orientation. I’ve heard the reasons for opposing civil marriage for same-sex couples. Cut through the distractions, and they stink of the same fear, hatred, and intolerance I have known in racism and in bigotry.

Some say let’s choose another route and give gay folks some legal rights but call it something other than marriage. We have been down that road before in this country. Separate is not equal. The rights to liberty and happiness belong to each of us and on the same terms, without regard to either skin color or sexual orientation.

The problem is that there is no such thing as a “narrow and limited exception” to equality. Equality that has exceptions is not equality at all. And narrow and limited exceptions for one in turn justify narrow and limited exceptions for the next minority that falls from favor.

Ben in Oakland

May 26th, 2009

I noticed that paragraph in my reading of the decision. I tihnk what they are saying is that an initiative to eliminate domestic partner rights just won’t fly.

Let us hope so.


May 26th, 2009

Isn’t it interesting that the only Hispanic on the court recognized how dangerous this 6-1

Rick Brentlinger

May 26th, 2009

I agree with you Timothy! Thanks for posting this.

The struggle for equality goes on and if trends are any indication, California will reverse Prop 8 with a marriage equality proposition within the next five years.

Rick Brentlinger


May 26th, 2009

(Sorry, I meant to write the following):

Isn’t it interesting that the only Hispanic on the court was also the only one to recognize how far reaching this decision was. By a majority of 50% plus one vote, California could take away the rights of any individual or group based purely on the fact that they belonged to a disliked minority group. Hmm… I wonder how many disliked minority groups there are in California??

Conservative African American and Hispanic clergy pretended during the Prop 8 campaign that this whole thing was just about gay people. Well thanks to their hard work, they have this ruling (bought and paid for by the Mormon Church) that allows any group to be a target, and any right to be taken away (at least under state law).


May 26th, 2009

Obviously the “narrow” gobbledygook gives their asses cover to argue against prop 8 being a “sweeping” revision. And Moreno tore them new asses in his dissent.


May 27th, 2009

Excellently written by Moreno.

Dear California- whose rights will you vote to take away next?


May 27th, 2009

Is it interesting the lesbian judge upheld Prop 8?


May 27th, 2009

^Is there any proof of that? The two only openly gay Supreme Court Justices are both in Oregon.

Gabriel Arana

May 27th, 2009

Tim, I’d be careful with blanket statements about “equal protection.” I agree with your conclusion, but not with the premise that any “narrow and limited” exception to equality/equal protection is inequality and therefore unjust. It sounds nice as a slogan, but it’s not true.

For instance, based on your premise you could argue that a 5-year-old should be able to get a driver’s license. There are exceptions to equal protection that are actually beneficial. In fact, this overgeneralized understanding of equal protection is what leads some to say that gays have the same rights as straight since they can both marry someone of the other sex (see my previous post about why this argument is flawed.)

Furthermore, Justice Moreno, whom you cite above, does not object to the principle that equal protection can have narrow a limited exceptions; instead, he says that Prop. 8 does not constitute such a narrow and limited exception. He is making a qualitative argument against it (see my post on the decision for more on the distinction) and the judges relied more heavily on the quantitative effect of Prop. 8. This is one of their central points of disagreement.

I agree of course with Moreno’s characterization, but the fact of the matter is that the California Constitution is set up to be easily amendable — it does not have protections against this sort of thing like other places do. It’s really a problem with the constitution as opposed to the decision, at least in my estimation.


May 27th, 2009

“It’s really a problem with the constitution as opposed to the decision, at least in my estimation.”

Hear, hear! Can’t blame the justices for following the law and constitution as written. Right after we pass another initiative that rescinds Prop 8 let’s reform the whole initiative process in California. If it wasn’t for Prop 22 and now Prop 8 California would’ve had marriage equality enacted by the legislature.


May 27th, 2009

^I would argue California’s Ballot Initiatives are unconstitutional under the guarantee of a Republican form of Government for each State.

Timothy Kincaid

May 27th, 2009


Tim, I’d be careful with blanket statements about “equal protection.”

Perhaps you mistook my commentary with another. I did not use the phrase “equal protection”. I discussed the broader principle of equality and what it means.

My point is that “narrow and limited exceptions” that allow distinct treatment based solely on classes of people invites and justifies ever more “narrow and limited exceptions” applied to more classes of people.

And I think that the readers understood me perfectly well.

As for your dismissal of the comparisons to “separate but equal”, obviously I disagree. I think you are arguing a matter of degrees, but you are, as ever, entitled to your own opinion.

Thomas Kraemer

May 27th, 2009

I’ve asked my Mormon friends if they would accept a constitutional Protection of Religion Amendment (PRA) that said they must be called a “cult” and not a “religion,” but we would give the Mormon “cult” the same rights of “religion.”

Words do matter, even to Mormons who hate being called a cult. The court is wrong to say the difference between the words “marriage” and “domestic partnership” is of no importance to equal rights.


May 27th, 2009

T. Kraemer,
I think the better analogy would be saying if Mormons are Christian or not. They’re everything like a Christian Church but they’re not. They’re different. (But they like to be that way.)

A good way to transform your Mormon friends into your non-friends is to say they belong to a cult.

Gabriel Arana

May 27th, 2009

Tim, even if you are talking about “equality” as a broad concept, the same logic applies. And why be citing the decision if you don’t intend to invoke “equal protection” or “equality” as a constitutional principle? That is what the quotes you are citing are dealing with.

I don’t know what it means to talk about the entire Prop. 8 imbroglio without invoking equal protection — that’s what the entire fight has been about, no?

You might think I’m being intentionally obtuse in harping on the issue or that I’m raining on the “Equality With Exceptions is no Equality at All” parade (again, this sounds nice for a pride rally), but it’s this armchair philosophizing about “equality” that leads people to argue that because straights can’t marry a gay person, either, there is no violation of equal protection. It’s not a trivial point.

And the justices’ point—whether it’s mine or not—is that the “narrow and limited exception” does NOT allow distinct TREATMENT; it affects the label and not government policy or enforcement of “equal protection.” You might think applying different labels is a form of treatment and you might be right, but their argument was that it was not so radical a revision to equal protection that it required a constitutional convention or revisionary procedure.

The fact that it’s just the label–and not the label on different water fountains–is in fact, I think, a major difference between this decision and segregation-like “separate but equal.”

The marriage/civil union distinction is still abhorrent and the comparison is low-hanging fruit, but there is a hint of gay martyrdom about it that strikes me as distasteful, especially when there are people in this country who actually do not have the same rights as those in California.

A gay person in Arkansas can be fired even if someone just THINKS he or she is gay–THAT more closely resembles the injustice of segregation than the fact that the state of California uses the term “civil unions” to describe gay partnerships even while offering all the same rights as marriage. The difference is symbolic and important, but to compare it to the very concrete suffering and discrimination faced by blacks under Jim Crowe is hyperbolic at best, offensive at worst. In fact it’s comparisons such as these that led Prop. 8 to be passed in the first place in California (some blacks find this comparison insulting).

In a way, you could analogize and think of a scenario in which there were two designations, “same-sex marriage” and “opposite-sex marriage,” both according the same rights and responsibilities. The court said that because of the “amendment” made by Prop. 8 to the equal protection clause, you can call them two different things. The fact that the CULTURAL and POLITICAL significance of the difference between “marriage” and “civil union” is huge did not (in fact the justices said it COULD not) figure into the decision as it does in the popular imagination.

Again California should revise its constitution so as to prevent Prop. 8 from being passed in the first place and then upheld, but the state has chosen a form of government that made this possible.

And I think that the readers understood me perfectly well.

I’m confused about what this means. I did not indicate that readers had trouble understanding you.

Jason D

May 27th, 2009

“The difference is symbolic and important, but to compare it to the very concrete suffering and discrimination faced by blacks under Jim Crowe is hyperbolic at best, offensive at worst. In fact it’s comparisons such as these that led Prop. 8 to be passed in the first place in California (some blacks find this comparison insulting).”

Gabriel, why are you intent on continuing the false talking point that the reason we lost was because of black voters. I seem to recall there being lots of white people in CA, and they could have voted differently as well.

Gabriel Arana

May 27th, 2009

No of course I don’t think we lost BECAUSE of them, we lost because of everyone who voted for Prop. 8. But we did not fare particularly well with the black community and I think we could have tailored our message to this particular constituency in a way that was not alienating.

Timothy Kincaid

May 28th, 2009


As I said before, you are entitled to your opinions.

Fortunately, I need not agree with them.

Leave A Comment

All comments reflect the opinions of commenters only. They are not necessarily those of anyone associated with Box Turtle Bulletin. Comments are subject to our Comments Policy.

(Required, never shared)

PLEASE NOTE: All comments are subject to our Comments Policy.


Latest Posts

The Things You Learn from the Internet

"The Intel On This Wasn't 100 Percent"

From Fake News To Real Bullets: This Is The New Normal

NC Gov McCrory Throws In The Towel

Colorado Store Manager Verbally Attacks "Faggot That Voted For Hillary" In Front of 4-Year-Old Son

Associated Press Updates "Alt-Right" Usage Guide

A Challenge for Blue Bubble Democrats

Baptist Churches in Dallas, Austin Expelled Over LGBT-Affirming Stance

Featured Reports

What Are Little Boys Made Of?

In this original BTB Investigation, we unveil the tragic story of Kirk Murphy, a four-year-old boy who was treated for “cross-gender disturbance” in 1970 by a young grad student by the name of George Rekers. This story is a stark reminder that there are severe and damaging consequences when therapists try to ensure that boys will be boys.

Slouching Towards Kampala: Uganda’s Deadly Embrace of Hate

When we first reported on three American anti-gay activists traveling to Kampala for a three-day conference, we had no idea that it would be the first report of a long string of events leading to a proposal to institute the death penalty for LGBT people. But that is exactly what happened. In this report, we review our collection of more than 500 posts to tell the story of one nation’s embrace of hatred toward gay people. This report will be updated continuously as events continue to unfold. Check here for the latest updates.

Paul Cameron’s World

In 2005, the Southern Poverty Law Center wrote that “[Paul] Cameron’s ‘science’ echoes Nazi Germany.” What the SPLC didn”t know was Cameron doesn’t just “echo” Nazi Germany. He quoted extensively from one of the Final Solution’s architects. This puts his fascination with quarantines, mandatory tattoos, and extermination being a “plausible idea” in a whole new and deeply disturbing light.

From the Inside: Focus on the Family’s “Love Won Out”

On February 10, I attended an all-day “Love Won Out” ex-gay conference in Phoenix, put on by Focus on the Family and Exodus International. In this series of reports, I talk about what I learned there: the people who go to these conferences, the things that they hear, and what this all means for them, their families and for the rest of us.

Prologue: Why I Went To “Love Won Out”
Part 1: What’s Love Got To Do With It?
Part 2: Parents Struggle With “No Exceptions”
Part 3: A Whole New Dialect
Part 4: It Depends On How The Meaning of the Word "Change" Changes
Part 5: A Candid Explanation For "Change"

The Heterosexual Agenda: Exposing The Myths

At last, the truth can now be told.

Using the same research methods employed by most anti-gay political pressure groups, we examine the statistics and the case studies that dispel many of the myths about heterosexuality. Download your copy today!

And don‘t miss our companion report, How To Write An Anti-Gay Tract In Fifteen Easy Steps.

Testing The Premise: Are Gays A Threat To Our Children?

Anti-gay activists often charge that gay men and women pose a threat to children. In this report, we explore the supposed connection between homosexuality and child sexual abuse, the conclusions reached by the most knowledgeable professionals in the field, and how anti-gay activists continue to ignore their findings. This has tremendous consequences, not just for gay men and women, but more importantly for the safety of all our children.

Straight From The Source: What the “Dutch Study” Really Says About Gay Couples

Anti-gay activists often cite the “Dutch Study” to claim that gay unions last only about 1½ years and that the these men have an average of eight additional partners per year outside of their steady relationship. In this report, we will take you step by step into the study to see whether the claims are true.

The FRC’s Briefs Are Showing

Tony Perkins’ Family Research Council submitted an Amicus Brief to the Maryland Court of Appeals as that court prepared to consider the issue of gay marriage. We examine just one small section of that brief to reveal the junk science and fraudulent claims of the Family “Research” Council.

Daniel Fetty Doesn’t Count

Daniel FettyThe FBI’s annual Hate Crime Statistics aren’t as complete as they ought to be, and their report for 2004 was no exception. In fact, their most recent report has quite a few glaring holes. Holes big enough for Daniel Fetty to fall through.