Proposition 8 Upheld

Today, May 26, 2009, the California Supreme Court, in a 6-1 decision, upheld Prop 8. This is amazing news for fans of democracy, but a brutal defeat for queers and LGBT activists and organizers.

California voters legally outlawed same-sex marriage when they approved Proposition 8 in November, but the constitutional amendment did not dissolve the unions of 18,000 gay and lesbian couples who wed before the measure took effect, the state Supreme Court ruled today.

The 6-1 decision was issued by the same court that declared a year ago that a state law defining marriage as the union of a man and a woman violated the right to choose one’s spouse and discriminated on the basis of sexual orientation.

Prop. 8 undid that ruling. The author of last year’s 4-3 decision, Chief Justice Ronald George, said today that the voters were within their rights to approve a constitutional amendment redefining marriage to include only male-female couples.

Bob Egelko
San Francisco Chronicle

The actual issue before the justices was whether the voters’ had the power to amend the California State Constitution by initiative, or whether – as the homosexuals and their supporters claimed – Prop 8 legally required a two-thirds legislative vote or approval from delegates at a state constitutional convention in order to have reached the November, 2008 ballot.

It’s rather shocking that the California court didn’t fall victim to judicial activism and actually held firmly to the law and to the merits of the case before them, which was Strauss vs. Horton, S168047.

In addressing the issues now presented in the third chapter of this narrative, it is important at the outset to emphasize a number of significant points. First, as explained in the Marriage Cases, supra, 43 Cal.4th at page 780, our task in the present proceeding is not to determine whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution. Regardless of our views as individuals on this question of policy, we recognize as judges and as a court our responsibility to confine our consideration to a determination of the constitutional validity and legal effect of the measure in question. It bears emphasis in this regard that our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values.

— Strauss v. Horton 5/26/09 SC
Majority Opinion of the Court

I would suggest to those who favor and/or support same-sex marriage that they gather signatures on petitions and submit them to the California Legislature so that a Constitutional amendment or revision redefining marriage as to be something other than merely “one man and one woman” can be brought to referendum vote in the next few years.

Related Reading:

47 Little Love Boosters for a Happy Marriage: Connect and Instantly Deepen Your Bond No Matter How Busy You Are (Amazingly Simple Little Things Successful Couples Do Series) (Volume 1)
Global Homophobia: States, Movements, and the Politics of Oppression
The ABC's of LGBT+
The Kids Book of World Religions
Paganism: An Introduction to Earth- Centered Religions

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6 Responses to “Proposition 8 Upheld”

  1. Beau Winiger Says:

    I think what was so dissappointing to those that hoped CA would overturn Prop 8 is the idea that even though gay marriage was made illegal by voter intitiative, voters should still not have the ability to make certain rights illegal. For instance, let’s suppose that an initiative was passed that made it illegal for 2 people with blond hair to marry. One would hope that this case would go to the state Supreme Court and there be overturned. This would not be a case of judicial activism, but rather a case where rights, namely equal protection under the law, were upheld even though said rights had been limited by voter referendum.

  2. jonolan Says:

    In the case of the gays the court couldn’t arrive at the decision that it violated the Equal Protections clause because CA state law expressly states that Domestic Partnerships have all the rights of Marriages.

    CA FAMILY.CODE – SECTION 297-297.5

    297.5.(a) Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.

    Now I agree that Prop 8 itself was disappointing, but I also think that trying to challenge a legally arrived at constitutional amendment in the courts was disappointing as well – and an action that could only succeed if that court had practiced judicial activism as opposed to rendering a legally sound decision.

    Thankfully for the sake of democracy in California and the rule of law the courts decided to do their job properly even though they obviously found doing so distasteful in this case.

  3. Beau Winiger Says:

    So what you are saying, if I understand correctly, is that CA couldn’t overturn this with an act of “judicial activism” because domestic partenerships in CA are separate from marriages, but equal. Hmm, separate but equal, where has that term been used before?

  4. jonolan Says:

    That’s a very tired and poor leap of pseudo-logic, Beau. We both know that the issues with “separate but equal” was that they weren’t actually equal in most cases. That is not the case under CA law.

    Go read the Decision in order to better understand its basis.

    Also, the CA Supreme Court could have overturned Prop 8 in an orgy of judicial activism; they just couldn’t so while upholding the Separations of Powers, laws and constitution of California.

  5. Beau Winiger Says:

    Forgive me for my pseudo-logic, but I believe that the more important issue that was settled was that it didn’t matter if something was equal, what mattered was that it was separate. Otherwise states would still be perfectly free to have public schools that segregate based on race, so long as they provide the same level of education to each race. If a public vote was held in a state, and they decided that such segregation was okay, and it was thereby decreed that all public places would be segregated, and it was guaranteed (for the sake of argument) that said places would be equal, do you believe that the Supreme Court of that state would not have the obligation to strike down the law, even if it was a case of judicial activism?

  6. jonolan Says:

    Again, Beau, your logic and attempt at comparison is stretched to the point of being tortured. There’s no equivalency between Prop 8 and segregation.

    Prop 8 removed no substantive right, violated no provision of Privacy or Equal Protection and segregated nobody. The word, “marriage” is merely restricted to heterosexual couples by the CA constitution. All else is identical.

    As for your dystopic fantasy, even in that case I would say that the court would have the obligation to NOT strike down the law if they had to overstep the Separations of Powers, laws and constitution in order to do so.

    Of course such a fantasy would require that the constitution of a state and that of the nation were such as to require judicial activism and an overreaching Court in order to strike down such a law. Thar is not the case in America.

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