California Supreme Court Ruling on Proposition 8 (SSM)

[CyclopticXander]

It just seems bizarre to me that Cali now has a little bubble of legal same sex marriages, but no more are allowed.

So are gay marriages legal in California? Only some. An unlikely and confusing answer. Is there precedent for this kind of legal limbo? Could someone make a case that it is in fact discriminatory toward those gays who did not say…have the resources to marry during that short window while they were legal?

I mean, straight people can marry but gay people can’t is something I can understand. As crazy as it may sound to me, at least it is a categorical relationship between those who can and cannot be married. But to say that gay marriage is illegal for everyone who wasn’t fast enough is something I can’t wrap my head around. The neat lines have been blurred.

I have to believe that this is ultimately just a weird transitional period and that same sex marriage will someday just be flat out legal in California, but this is just super weird.

[DiosaBellissima]

Will we be able to read the decision?

[Bricker]

@EJsGirl

This whole thing makes me crazy. “The will of the people? The people have spoken?” God damn it, segregation was the will of the people, as was the lack of rights for women. Doesn’t make it right.

But what organization should have the power to overturn laws passed by the people by saying, “This law isn’t right?”

The problem is that if we give courts the power to say that a law is validly passed, but simply isn’t right, we’ve created a sort of council of philosopher-kings, a group that hold the ultimate power of lawmaking. What happens when you disagree with them? What happens if they think abortion “just isn’t right?” On what leg do you stand then? You surely can’t say, “But a majority of people favor abortion rights!” You’ve already adopted the principle that the majority view must yield to the determination of what is “right.”

It seems to me you favor overriding the people’s will on some things, but not others. In short, you want your views to prevail, regardless of whether the majority agrees. That’s not unreasonable for an advocate – of course you think your positions are the correct ones – but surely you see it’s untenable as a method of government.

[gotpasswords]

@DiosaBellissima

Will we be able to read the decision?

Yes.

The PDF version is here.

It’s 185 pages long, and at the moment, the Court’s website is getting pounded, so you’ll need to be a bit patient.

[Captain_Carrot]

Majority rule doesn’t apply to denying people rights.

[Captain_Carrot]

@Bricker

But what organization should have the power to overturn laws passed by the people by saying, “This law isn’t right?”

The courts. Of course, they need actual legal justification, but they’re usually pretty good about that. The job of the judiciary is not to interpret the letter of the exact law before them like robots.

[gotpasswords]

The summary from the full 185-page ruling:

In summary, we conclude that Proposition 8 constitutes a permissible constitutional amendment (rather than an impermissible constitutional revision), does not violate the separation of powers doctrine, and is not invalid under the “inalienable rights” theory proffered by the Attorney General. We further conclude that Proposition 8 does not apply retroactively and therefore that the marriages of same-sex couples performed prior to the effective date of Proposition 8 remain valid. Having determined that none of the constitutional challenges to the adoption of Proposition 8 have merit, we observe that if there is to be a change to the state constitutional rule embodied in that measure, it must “find its expression at the ballot box.”

[gotpasswords]

@EJsGirl

This whole thing makes me crazy. “The will of the people? The people have spoken?” God damn it, segregation was the will of the people, as was the lack of rights for women. Doesn’t make it right.

@Captain Carrot

Majority rule doesn’t apply to denying people rights.

This wasn’t a case about rights. It was a case about whether or not a constitutional amendment was properly put before the voters. The actual subject and intent of that amendment is irrelevant to whether or not it was done via the proper procedures.

From a technical and legal standpoint, the ruling is correct. From a human standpoint, it’s horrible.

[Jodi]

@gotpasswords

From a technical and legal standpoint, the ruling is correct. From a human standpoint, it’s horrible.

Agreed. The will of the People of the State of California was upheld. The tragedy isn’t the upholding, but that this was their will in the first place.

[sup]Anyone so literal as to correct me by pointing out that this was not EVERY Californian’s will, is cordially invited to go pound sand.[/sup]

[Gorsnak]

Vote YES in 2012!
Good luck down there. I’d invite you to come up here to get married, but I doubt there’s a Californian alive who would brave a Saskatchewan winter even for true love.

[Bearflag70]

excerpts

http://www.courtinfo.ca.gov/opinions/documents/S168047.PDF

…
the principal issue before us concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process so as to incorporate such a limitation as an explicit section of the state Constitution.

…
once an amendment is proposed by either means, the amendment becomes part of the state Constitution if it is approved by a simple majority of the voters who cast votes on the measure at a statewide election

…
What effect does Proposition 8 have on this aspect of the state constitutional rights of privacy and due process as set forth in the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757? Although the new constitutional section added by Proposition 8 — article I, section 7.5 — does not explicitly purport to amend either the privacy or due process provisions of the California Constitution, our past cases make clear that this newly adopted provision must be understood as carving out an exception to the preexisting scope of the privacy and due process clauses with respect to the particular subject matter encompassed by the new provision.

…
we properly must view the adoption of Proposition 8 as carving out an exception to the preexisting scope of the privacy and due process clauses of the California Constitution

…
Proposition 8 reasonably must be interpreted in a limited fashion as eliminating only the right of same-sex couples to equal access to the designation of marriage, and as not otherwise affecting the constitutional right of those couples to establish an officially recognized family relationship.

…
by incorporating into the California Constitution a specific provision that expressly restricts the designation of “marriage” to the union of a man and a woman, Proposition 8 must be understood as creating a limited exception to the state equal protection clause

…
the people have the constitutional right to alter or reform their government.

…
Article II, section 8, subdivision (a) provides in full: “The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.”

…
A revision to the California Constitution may be proposed either by the required vote of the Legislature or by a constitutional convention (proposed by the Legislature and approved by the voters). Either a proposed amendment or a proposed revision of the Constitution must be submitted to the voters, and becomes effective if approved by a majority of votes cast thereon at the election. Under these provisions, although the initiative power may be used to amend the California Constitution, it may not be used to revise the Constitution.

…
if the scope of the proposed initiative measure . . . now before us is so broad that if such measure became law a substantial revision of our present state Constitution would be effected, then the measure may not properly be submitted to the electorate until and unless it is first agreed upon by a constitutional convention

…
“[s]hort of a constitutional convention, California has no way to make coordinated broad changes to renovate outdated sections and articles in its Constitution”

…
From a quantitative standpoint, it is obvious that Proposition 8 does not amount to a constitutional revision. The measure adds one 14-word section (§ 7.5) to article I — a section that affects two other sections of article I (§§ 1, 7) by creating an exception to the privacy, due process, and equal protection clauses contained in those two sections as interpreted in the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757.

…
Instead, petitioners rest their claim that Proposition 8 constitutes a constitutional revision solely upon the qualitative prong of the amendment/revision analysis. The constitutional change embodied in Proposition 8, however, differs fundamentally from those that our past cases have identified as the kind of qualitative change that may amount to a revision of the California Constitution.

…
As we have seen, the numerous past decisions of this court that have addressed this issue all have indicated that the type of measure that may constitute a revision of the California Constitution is one that makes “far reaching changes in the nature of our basic governmental plan” (Amador, supra, 22 Cal.3d 208, 223, italics added), or, stated in slightly different terms, that “substantially alter[s] the basic governmental framework set forth in our Constitution.”

…
[“a qualitative revision includes one that involves a change in the basic plan of California government, i.e., a change in its fundamental structure or the foundational powers of its branches”

…
Proposition 8 simply changes the substantive content of a state constitutional rule in one specific subject area — the rule relating to access to the designation of “marriage.”

…
Contrary to petitioners’ contention, the measure does not transform or undermine the judicial function: California courts will continue to exercise their basic and historic responsibility to enforce all of the provisions of the California Constitution, which now include the new section added by the voters’ approval of Proposition 8.

…
the phrase “a change in the basic plan of California government” as used in the earlier California amendment/revision line of cases, we explained that this phrase refers to “a change in [the] fundamental [governmental] structure or the foundational powers of its branches” (id. at p. 509, italics added) and not, as petitioners suggest, simply to any change in an important constitutional right or principle.

…
it is evident that because Proposition 8 works no change of that nature in the California Constitution, it does not constitute a constitutional revision

…
a change in the California Constitution properly is viewed as a constitutional revision only if it embodies a change of such far reaching scope that is fairly comparable to the example set forth in the Amador decision, namely, a change that “vests all judicial power in the Legislature.”

…
Proposition 8 does not eliminate the substantial substantive protections afforded to same-sex couples by the state constitutional rights of privacy and due process as interpreted in the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757. Rather, same-sex couples continue to enjoy the same substantive core benefits afforded by those state constitutional rights as those enjoyed by opposite-sex couples — including the constitutional right to enter into an officially recognized and protected family relationship with the person of one’s choice and to raise children in that family if the couple so chooses — with the sole, albeit significant, exception that the designation of “marriage” is, by virtue of the new state constitutional provision, now reserved for opposite-sex couples. Similarly, Proposition 8 does not by any means “repeal” or “strip” gay individuals or same-sex couples of the very significant substantive protections afforded by the state equal protection clause either with regard to the fundamental rights of privacy and due process or in any other area, again with the sole exception of access to the designation of “marriage” to describe their relationship.

…
there is no need for us to consider whether a measure that actually deprives a minority group of the entire protection of a fundamental constitutional right or, even more sweepingly, leaves such a group vulnerable to public or private discrimination in all areas without legal recourse (cf. Romer v. Evans (1996) 517 U.S. 620), would constitute a constitutional revision under the provisions of the California Constitution. A narrowly drawn exception to a generally applicable constitutional principle does not amount to a constitutional revision within the meaning of article XVIII of the California Constitution.

…
the distinction drawn by the California Constitution between an amendment and a revision does not turn on the relative importance of the measure but rather upon the measure’s scope: as we have explained, only if a measure embodies a constitutional change that is so far reaching and extensive that the framers of the 1849 and 1879 Constitutions would have intended that the type of change could be proposed only by a constitutional convention, and not by the normal amendment process, can the measure properly be characterized as a constitutional revision rather than as a constitutional amendment.

…
the scope and substance of an existing state constitutional individual right, as interpreted by this court, may be modified and diminished by a change in the state Constitution itself, effectuated through a constitutional amendment approved by a majority of the electors acting pursuant to the initiative power.

…
under petitioners’ approach, the people would have the ability — through the initiative process — to extend a constitutional right to a disfavored group that had not previously enjoyed that right, but the people would lack the power to undo or repeal that very same extension of rights through their exercise of the identical initiative process.

…
neither the history of the provisions governing the making of changes to the California Constitution, nor the many past cases interpreting and applying those provisions, support petitioners’ assertion that the amendment/revision distinction properly should be understood as establishing such a “one-way street” or as mandating such a seemingly anomalous result

…
“Each situation involving the question of amendment, as contrasted with revision, of the Constitution must . . . be resolved upon its own facts.”

…
Speculation regarding a potential “parade of horrible amendments” that might be adopted in the future rests upon the dubious factual premise of a highly unrealistic scenario of future events. Resort to such a speculative approach plausibly could provide a basis for a court to conclude that virtually any future proposed constitutional change constitutes a constitutional revision because the change proposed could be followed by a series of comparable changes in other areas that fundamentally would alter the constitutional landscape.

…
we have no doubt that an express restriction could be fashioned that would limit the use of the initiative power in the manner proposed by petitioners — but the California Constitution presently contains no limits of this nature.

…
It is not our role to pass judgment on the wisdom or relative merit of the current provisions of the California Constitution governing the means by which our state Constitution may be altered.

…
Accordingly, we hold that Proposition 8 constitutes a constitutional amendment rather than a constitutional revision.

[Arnold_Winkelried]

From a legal stanpdoint, the ruling is incorrect if you take the legal position that CA Proposition 8 violated the Equal Protection Clause (Section 1 of the 14th Amendment of the US Constitution).

[blanx]

@Jodi

Agreed. The will of the People of the State of California was upheld. The tragedy isn’t the upholding, but that this was their will in the first place.

Agreed. Even though I think the outcome is asinine, based strictly upon the procedural history, this was the “correct” outcome.

This is also why civil rights should not be subject to a vote. Stupid tyranny of the majority.

[DiosaBellissima]

@Arnold_Winkelried

From a legal stanpdoint, the ruling is incorrect if you take the legal position that CA Proposition 8 violated the Equal Protection Clause (Section 1 of the 14th Amendment of the US Constitution).

But is there federal case law that mandates that marriage is a right? I was under the belief that there was no such law, so this does not extend to a 14th amendment issue and maintains itself as a state issue.

[Bearflag70]

Complaint from the Left: You shouldn’t be able to alter fundamental Constitutional rights of a specific group by amending the state Constitution by simple majority vote!

Response from the Right: OK, here’s a new initiative to make it harder to amend the state Constitution by initiative; let’s raise the standard to 2/3 vote (thus “locking in” Prop. 8 for many years to come)

[Arnold_Winkelried]

@DiosaBellissima

But is there federal case law that mandates that marriage is a right? I was under the belief that there was no such law, so this does not extend to a 14th amendment issue and maintains itself as a state issue.

I’m not a legal expert, but I have read (here’s a cite) that in Loving v. Virgina (interracial marriage case) the US Supreme court said in its decision

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival… To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

[DiosaBellissima]

@DiosaBellissima

But is there federal case law that mandates that marriage is a right? I was under the belief that there was no such law, so this does not extend to a 14th amendment issue and maintains itself as a state issue.

Yeah, I quoted myself. And what?

Question from my little political science loving self: What would it take to make this a federal issue? It seems to me that whatever happens would have to be two fold (or one mega decision that covers everything):

[ol]
[li]You’d first need something to go to the court that challenges the idea of whether or not marriage is a legal right. If the court decided marriage is a right, it would then be extended under the 14th Amendment’s protections, yes?[/li][li]Then, you’d have to have some sort of ruling that dictates that “marriage” includes gay marriage and not just the right of everyone to heterosexually marry. Yeah?[/li][/ol]

[Bricker]

@Arnold_Winkelried

From a legal stanpdoint, the ruling is incorrect if you take the legal position that CA Proposition 8 violated the Equal Protection Clause (Section 1 of the 14th Amendment of the US Constitution).

Why do you suppose the challengers failed to make that argument?

[DiosaBellissima]

@Arnold_Winkelried

I’m not a legal expert, but I have read (here’s a cite) that in Loving v. Virgina (interracial marriage case) the US Supreme court said in its decision

Oh, how did I forget about that one? Well, hrm. In my follow up post, then doesn’t this take care of my first point? Why can’t this be pushed up to the US SC?

I remember reading once that the court has denied to review gay marriage cases recently, anyone know if this is true?

[Gorsnak]

@Arnold_Winkelried

From a legal stanpdoint, the ruling is incorrect if you take the legal position that CA Proposition 8 violated the Equal Protection Clause (Section 1 of the 14th Amendment of the US Constitution).

Except that the challenge wasn’t based on the federal Equal Protection Clause, but rather on procedural issues regarding how the state Constitution can be amended/revised by plebiscite.

And if the California Supreme Court had overturned Prop 8 based on federal Equal Protection, they’d get reversed by the current SCOTUS. That would be a bad thing. Best not to launch that challenge until there’s at least some chance of winning it.

Sucks, to be sure, but fight the battles you can win rather than tilting at windmills. Overturn Prop 8 via another prop in 2010 or 2012, rack up some more states in the northeast, upper Midwest, and Pacific Northwest. Then with a favourable SCOTUS, launch a new Loving v. Virginia.