What the Calif. Supreme Court said

Gabriel Arana

May 27th, 2009

The California Supreme Court’s decision yesterday centered not on a single question, but a few. Of the challenges to Prop. 8, the most salient was the procedural question of whether the effect of Prop. 8 was “big enough” to constitute a revision of the equal protection clause. I discuss the three issues the court considered as well as some related questions.

QUESTION 1: The judges were asked to decide whether Prop. 8 modified equal protection substantively enough to constitute a revision. Basically, the state’s Supreme Court found that NO, Prop. 8 did not constitute a fundamental revision of equal protection, which requires passage by the legislature and a public referendum, and therefore could stand as an amendment.

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 is pointing out here that the only thing at stake here is the term “marriage.” Gays and lesbians retain all the rights granted by marriage in the state as articulated in In Re Marriage Cases, the decision which overturned the statutory ban on gay marriage last May. The court’s previous decision also elevated protections for gays and lesbians to the level offered to blacks and women; these protections, too, remain intact.

The passage of Prop. 8 has, according to the justices, “minimal effect on the governmental plan or framework of California that existed prior to the amendment” and therefore cannot be considered a revision to the state constitution. The judges relied heavily on this criteria — effect on governmental framework — in deciding that Prop. 8 was not a revision. They also considered the “qualitative” effect of Prop. 8 — how it affected the nature and credibility of the constitution — but fell back on the “qualitative” question of its concrete effects in deciding the matter.

Can rights be taken away by a simple majority vote?

The short answer is, yes. There have been many instances in which the California Supreme Court allowed a fundamental right to be altered in some way because of an amendment. For instance, after the court found in 1972 that the death penalty constituted “cruel and unusual punishment,” voters reinstated it by using a ballot measure. One point the justices brought up was that there have also been many instances in which a right was extended by amendment — why then, they reason, could it not be curtailed?

As many commentators have pointed out, the amendment process in California is liberal as compared to other states, which is part of the reason why hundreds of amendments to the state constitution (as opposed to 27 for the U.S. Constitution) have been enacted. More importantly, the justices pointed out, the California Constitution has no provision in it preventing an amendment that revises fundamental rights. Massachusetts, on the other hand, does; you can’t revise the state constitution’s Bill of Rights. It would also be another thing if we were talking about the U.S. Constitution.

It’s important to keep in mind that the constitutional structure of California government in part constrains what the judges can rule in favor of; unlike other state constitutions, California’s does little to stand in the way of majority rule. Even gay legal advocates thought this was a long shot.

Is this like “separate but equal”?

Yes and no. Many BTB readers have commented on how this decision is reminiscent of the “separate but equal” decision that allowed segregation to continue. I think it’s important to note that the right in question here is not really equivalent in scale to segregation. We are not talking about separate public accommodations — we’re talking about the right to a label, which, while culturally and politically significant, does not approach the rights in question in Plessy v. Ferguson. I am not saying I think the decision is just or fair, only that comparing it to “separate but equal” strikes me as a bit hyperbolic.

A larger question is whether we should be concentrating our efforts on the symbolic “civil unions” vs. “marriage” distinction when millions of gays and lesbians can still be legally fired for being gay, cannot adopt children, and have no rights comparable to those offered by marriage or civil unions in places like California.

QUESTION 2: The second argument the justices considered was whether Prop. 8 violated the “separation of powers” by allowing the electorate to decide on a matter already settled by the courts. The justices rejected this argument outright, saying that the California Constitution “explicitly recognizes the right of the people to amend their state Constitution.”

This argument was even more of a long shot than the first. It was basically saying that the electorate “usurped” the power of the judiciary.

QUESTION 3: The final question the judges considered was not proposed by Lambda Legal, which brought the case to the court, but by the state’s Attorney General. He argued that certain rights enshrined in the state constitution are “inalienable” and “not subject to ‘abrogation.'” Again, the justices fell back on the fact that the state constitution does not explicitly designate certain rights as such, as opposed to other constitutions that do.

The court’s decision is of course a personal regret, but I think the moral question of whether this is, in a sense, “right” is different from the legal question of whether Prop. 8 could be overturned. It is telling that the justices voted 6-1 in favor of upholding Prop. 8, though for the dissenting opinion one can look to the decision here (it’s at the end).


May 27th, 2009

Separate but equal is perfectly appropriate.

What the justices argued was akin to saying that while the right to drink water wouldn’t be affected, a narrow designation would be carved out for whites, i.e. what fountains they would drink from. Substantially the same.


May 27th, 2009

What about the challenge to the existing marriages? You should go into that too, that’s the one I where I wasn’t sure how they rule.

I’m really surprised people are really surprised. There wasn’t any good legal argument here.


May 27th, 2009

Good analysis, Gabe. While the decision is unfortunate in many ways, the way the judges framed it shows that they understand that this was only a small setback in an inevitable expansion of gay rights in California.


May 27th, 2009

“Separate but equal” may seem hyperbolic in comparison but…

a) it’s a truthful designation


b) it’s the only way people seem to understand the difference between civil unions and marriages.

Timothy Kincaid

May 27th, 2009

“Separate but equal” is the phrase civil rights leader John Lewis used to dismiss the idea of denying gay couples the right to the word “marriage”.


May 27th, 2009

Here is an example of why the legal system is a failure. In general people expect that Justices are supposed to provide justice. Not dive into a bunch of legaleze and arguments about symantics.

This is discrimination and it is wrong. Justices are supposed to provide justice. There isn’t any reason to have a court system that doesn’t deliver the goods.


May 27th, 2009

Please, as a bisexual Hoosier, I implore you to keep up the fight for true marriage while “millions of gays and lesbians can still be legally fired for being gay, cannot adopt children, and have no rights comparable to those offered by marriage or civil unions in places like California.” Gay rights aren’t going to come to places like Indiana any time soon. But, I can at least look on with happiness as it happens in other places, and fantasize about moving to friendly places like New England when the Hoosier crunch gets too onerous!

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.