Proposition 8 Constitutional but Not Retroactive, Court Rules

Wednesday, May 27, 2009

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Proposition 8 Constitutional but Not Retroactive, Court Rules

From Staff and Wire Service Reports

The California Supreme Court yesterday upheld a voter-approved ban on same-sex marriage, but it also decided that the estimated 18,000 gay couples who tied the knot before the law took effect will stay wed.

Demonstrators outside the court yelled “shame on you!” after the ruling was announced, and gay rights activists immediately promised to resume their fight, saying they would go back to voters as early as next year in a bid to repeal Proposition 8.

The court rejected an argument by gay rights activists that the ban revised the California Constitution’s equal protection clause to such a dramatic degree that it first needed the Legislature’s approval, by a vote of 6-1 in an opinion authored by Chief Justice Ronald M. George.

Proposition 8 amended the California constitution to define marriage as between a man and a woman. It passed in November with 52 percent of the vote. After the election, gay rights activists went back to the court, arguing that the ban was improperly put to voters and amounted to a revision—which required legislative approval—not an amendment.

Limited Exception

In his 136-page opinion, George explained that the measure carves out a narrow and limited exception to the preexisting scope of the privacy and due process clauses, reserving the designation of the term “marriage” for the union of opposite-sex couples, but left intact 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.

“Like opposite-sex couples, same-sex couples enjoy this protection not as a matter of legislative grace, but of constitutional right,” the chief justice explained.

As limiting access to the designation of marriage to opposite-sex couples would not abrogate a same-sex couple’s state constitutional right of privacy and due process, or “fundamentally alter” the substance of state constitutional equal protection principles recognized in prior state Supreme Court rulings, George reasoned that the measure constituted a constitutional amendment rather than a constitutional revision.

Proposition 8—“which adds but a single, simple section to the Constitution”—also did not alter or undermine the role of the judiciary, as the judiciary’s authority in applying the state Constitution has always has been limited by the Constitution, George said.

Although he acknowledged several other state constitutions contain provisions that preclude using the initiative power to amend specified provisions of those constitutions, the chief justice emphasized that the California Constitution contains no comparable limitation.

Initiative Power

George, joined by Justices Joyce L. Kennard, Marvin R. Baxter, Ming W. Chin, and Carol A. Corrigan, rejected the contention that a majority of voters cannot adopt a measure that diminishes a state constitutional right through the initiative process absent an express restriction on the initiative power.

The justices also rejected the argument put forth by Attorney General Jerry Brown that the rights identified as “inalienable” by the California Constitution were exempt from limitation by the adoption of a constitutional amendment.

In addition George explained that Proposition 8 did not violate the constitutional separation of powers doctrine by attempting to revisit the question of the state of the law decided in In re Marriage Cases (2008) 43 Cal.4th 757—which addressed the constitutional validity, under the then-controlling provisions of the California Constitution, of the California marriage statutes limiting marriage to a union between a man and a woman—but established a new substantive constitutional rule that took effect upon the voters’ approval of the measure.

And, as the state Constitution recognizes the right of the people to amend the Constitution through the initiative process, the people, in exercising that authority, have not usurped a power allocated by the Constitution exclusively to the judiciary or another branch of government, George added.

In her separate concurrence, Kennard emphasized that the initiative process cannot change the judicial interpretation of the state Constitution, but only the Constitution itself, and that In re Marriage Cases “remains the final word on the meaning of the state Constitution as it then read.”

Justice Kathryn Mickle Werdegar filed a concurring opinion, agreeing with the result reached by the majority opinion but disagreeing in part with its analysis. She contended that an amendment of “sufficient scope to a foundational principle of individual liberty,” such as equal protection, can constitute an impermissible constitutional revision.

Werdegar concluded that Proposition 8 impinged on the right of same-sex couples to have their relationships accorded the same respect and dignity as opposite-sex couples by depriving them of the nomenclature of marriage applied to their unions, but agreed with the majority that the measure “has not brought about such a broad change in the principle of equal protection as to amount to a constitutional revision.”

Moreno Dissents

Justice Carlos Moreno dissented from his colleagues’ conclusion that Proposition 8 was a lawful amendment, arguing that the denial of the designation of marriage to same-sex couples could not be described as a “narrow” or “limited” exception to the requirement of equal protection, because “requiring discrimination against a minority group…strikes at the core of the promise of equality that underlies our California Constitution.”

Moreno contended that “Proposition 8 represents an unprecedented instance of a majority of voters altering the meaning of the equal protection clause by modifying the California Constitution to require deprivation of a fundamental right on the basis of a suspect classification.”

He suggested that yesterday’s ruling “places at risk the state constitutional rights of all disfavored minorities” and “weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority.”

As for the effect of Proposition 8 on the marriages of same-sex couples performed prior to the November election, the court unanimously concluded that the measure lacked a clear indication that the voters intended it to apply retroactively and upheld the unions which had already taken place.

But such consolation was not enough for Jeannie Rizzo, 62, one of the lead plaintiffs along with her wife, Polly Cooper, who said: “It’s not about whether we get to stay married. Our fight is far from over.”

‘Hollow Victory’

Amber Weiss, 32, who married her partner Sharon Papo, 30, on the first day gay marriage was legal last year, June 17, said she was “relieved” her marriage was not invalidated, but characterized yesterday’s decision as “a hollow victory because there are so many that are not allowed to marry those they love.”

Papo added that she felt “very uncomfortable being in a special class of citizens” whose same-sex unions were upheld.

Gov. Arnold Schwarzenegger issued a statement praising the California Supreme Court’s decision to uphold the same-sex marriages that took place prior to the passage of Proposition 8 as “the right decision,” and predicted that “one day either the people or courts will recognize gay marriage.”

Randy Thomasson, president of SaveCalifornia.com, a statewide organization of social conservatives, insisted that the same-sex marriages performed before Proposition 8’s enactment were “counterfeit,” contending that the text of the initiative measure clearly indicated that the only valid marriages are between a man and a woman, regardless of when the marriage was performed.

Assembly Speaker Karen Bass, D-Los Angeles, criticized yesterday’s ruling as “a setback for equality in California,” but predicted “it will not be the end of the story.”

Noting that the state Assembly has twice passed marriage equality bills and more than 60 legislators signed on to an amicus brief to overturn Proposition 8, Bass claimed that “[t]he people of California and the tide of history are clearly moving toward equality,” and vowed she and her colleagues “will continue to work to promote equality for all Californians in any way that we can.”

Fellow Assembly member Kevin de Leon, D-Los Angeles, insisted that “gay and lesbian families deserve the same honor, dignity, respect, and legal status of any marriage in California and the United States,” maintaining that yesterdays’ decision “defeats the very purpose of our constitution.”

‘Shameful Chapter’

A similar sentiment was expressed by Janice Rocco, southwest regional director for the National Organization for Women, who accused the state’s high court of allowing a “bare majority of voters…[to] eliminate the fundamental rights of a minority,” calling the “writing of discrimination into our state’s constitution…a shameful chapter in our state’s history.”

Los Angeles County Supervisor Gloria Molina asserted her belief that the measure will eventually be overturned so that “the recognition of the fundamental rights of all persons, regardless of their sexual orientation, will once again be recognized in our California Constitution,” as it is in other states.

Same-sex marriage is legal in five states: Iowa, Maine, Vermont, Massachusetts and Connecticut.

Patricia Bellasalma, president of the California National Organization of Women issued a statement declaring that the organization will continue to fight to overturn Proposition 8 and “to ensure that a simple majority never again has the power to carve out a narrow exception to equality and justice for all.”

Lt. Gov. John Garamendi also issued a statement asserting that “Californians will one day soon repeal Proposition 8,” and vowed to “stand shoulder-to-shoulder” with gay rights activists in their work to persuade the electorate to do so.

But Andrew Pugno, general counsel of ProtectMarriage.com—the official proponents of Proposition 8—promised to vigorously contest any future efforts to repeal Proposition 8 and commended the California Supreme Court for “upholding the right of the people to define marriage in our constitution.”

Ron Prentice, chairman of the ProtectMarriage.com executive committee, said that the organization will be turning its efforts to public education and outreach programs “so that citizens come to better understand and appreciate the many benefits that traditional marriage provides for society and out families.”

The case is Strauss v. Horton, 09 S.O.S. 2869.