HRC Blog

Ed. Note: This analysis just in from our legal team. Today, the California Supreme Court upheld Proposition 8, which defines marriage in the California constitution to exclude same-sex couples.  It also ruled that the thousands of same-sex couples who married before Prop 8 passed are still legally married in California. This decision raises the obvious question: "why did the California Supreme Court first rule that there is a fundamental right to marriage equality and then rule that the voters can take that away?" That question is at the heart of today's 6-1 ruling.  Here's the background and what the Court considered: 

• In May 2008, the Supreme Court ruled that the California law barring same-sex couples from marrying violated the state's constitution;
• On November 4, 2008, voters approved, by a margin of 52% to 48%, a measure (Proposition 8) that defined marriage as one man and one woman, thereby excluding same-sex couples.
• Pro-equality advocates challenged Proposition 8 in state court, arguing that the Constitution did not allow voters to rescind fundamental constitutional rights at the ballot box. HRC submitted an amicus brief in the case.

In layperson's terms, this is the legal theory of the case:

Voters can make minor changes to the California constitution through initiatives. Major changes require a longer process. It helps to think about this in terms of renovating your home. If you want to paint your house, you just go to the store and select a color, then paint. But if you want to add on to, structurally change, or even demolish your house, you need to get a permit, and typically the work gets done by a licensed professional. Why? Because when you're dealing with the bearing walls and the structure, you need to take care with what you're doing, or the whole thing can tumble down. And people can get hurt. It's the same with a constitution - through the initiative process, you can embellish and clarify, but you can't move a bearing wall, not without a deliberative process.

Today, the court rejected the argument that excluding same-sex couples from equal marriage constitutes a fundamental change to the constitution that requires a more deliberative process. Its reasoning, which we find unpersuasive, was as follows:

• Only initiatives that change the government's structure are subject to the requirement of a more lengthy process that includes the legislature;
• Proposition 8 did not eliminate same-sex couples' right to form legally-recognized families with all of the benefits that different-sex couples enjoy. It simply limited the designation "marriage" to different-sex couples.
• Although the court noted that the term "marriage" carried its own constitutional weight, denying same-sex couples this designation did not amount to a substantial revision of the constitution.
• Constitutional amendments are not ordinarily read to have retroactive effect; thus, the same-sex couples who married before November 4 will remain married under California law.

The Court made clear that today's decision was not a ruling about whether there should be a right to marry in California; it was a ruling about whether the California Constitution, as written, permits the voters to pass Proposition 8 and thereby limit the right to marry.    Although same-sex couples in California who did not marry before November 4, 2008 are barred from marrying until Proposition 8 is itself repealed, the Court made clear that same-sex couples have a constitutional right to enter into a family relationship (i.e. domestic partnerships) with access to all the constitutionally based rights and responsibilities of marriage. The court noted that it is the initiative process itself that determined the result, and that the Court did not have the power to change the initiative process:

If the process for amending the Constitution is to be restricted - perhaps in the manner it was explicitly limited in an earlier version of our state Constitution (see, post, at pp. 46-55), or as limited in the present-day constitutions of some of our sister states (see, post, at pp. 105-107) - this is an effort that the people themselves may undertake through the process of amending their Constitution in order to impose further limitations upon their own power of initiative.

Today's ruling is profoundly disappointing.  As Justice Moreno noted in his eloquent dissent:

I realize, of course, that the right of gays and lesbians to marry in this state has only lately been recognized.  But that belated recognition does not make the protection of those rights less important.  Rather, that the right has only recently been acknowledged reflects an age-old prejudice that makes the safeguarding of that right by the judiciary all the more critical ... 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.  The majority's holding is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution. 

One silver lining is that thousands of same-sex couples in California remain fully married.  Not only will they retain the dignity and protections of marriage until California rectifies the error of Proposition 8, but they will serve as shining examples of why their neighbors should act to re-establish full equality.