# Did the Cali SC Really Just Take the Teeth Out of Prop 8? **URL:** \ **Category:** Great Debates\ **Created:** [May 26, 2009, 7:57pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725 "2009-05-26T19:57:19Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Gangster\_Octopus](https://avatars.discourse-cdn.com/v4/letter/g/a8b319/32.png) [@Gangster\_Octopus](https://boards.straightdope.com/u/Gangster_Octopus)\ **Post date:** [May 26, 2009, 7:57pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/1 "2009-05-26T19:57:19Z")
The headlinse have declared that the California Suprme Court have upheld Proposition 8, and they undeniably have. However, what they actually did was uphold it in the narrowestr sense possible: > [@](#): > > By its terms, the new provision refers only to “marriage” and does not address the right to establish an officially recognized family relationship, which may bear a name or designation other than “marriage.” Accordingly, although the wording of the new constitutional provision reasonably is understood as limiting use of the designation of “marriage” under California \*\37 law to opposite-sex couples, and thereby modifying the decision in the Marriage Cases, supra, 43 Cal.4th 757, insofar as the majority opinion in that case holds that limiting the designation of “marriage” to the relationship entered into by opposite-sex couples constitutes an impermissible impingement upon the state constitutional rights of privacy and due process, the language of article I, section 7.5, on its face, does not purport to alter or affect the more general holding in the Marriage Cases that same-sex couples, as well as opposite-sex couples, enjoy the constitutional right, under the privacy and due process clauses of the California Constitution, to establish an officially recognized family relationship. Because, as a general matter, the repeal of constitutional provisions by implication is disfavored (see, e.g., In re Thiery S. (1979) 19 Cal.3d 727, 744; Warne v. Harkness (1963) 60 Cal.2d 579, 587-588), 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. IANAL, so hoperuflly Bricker or someone better at this stuff than me can chime in, but this seems to say to me that the state has an obligation to a) provide an institution to smae-sex couples that is equivalent to a oppsote-sex marriage in every way, except…2) it cannot be called 'marriage". Keep in mind, that Civil Unions WERE not the equivalent of marriage, but it seems to me that the SC is basically saying you better make them the equivalent of marriage, they better be equal in every way shape or form to marrigae except, they cannot be called marriage. Is this a correct interpretation? ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [May 26, 2009, 8:05pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/2 "2009-05-26T20:05:07Z")
I don’t read it quite that far. I do read it to mean that Proposition 8 cannot be used to ban the establishment of “an officially recognized family relationship,” whatever that means. Might mean the same thing, might not. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [May 26, 2009, 8:07pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/3 "2009-05-26T20:07:24Z")
CA right now doesn’t have civil unions either, right? The ruling appears to me to say Prop 8 doesn’t prevent them from being established, not that the state is obligated to offer them. It’s a pretty strong hint, though. ---
**Author:** ![Voyager](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/voyager/32/133_2.png) [@Voyager](https://boards.straightdope.com/u/Voyager)\ **Post date:** [May 26, 2009, 8:08pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/4 "2009-05-26T20:08:48Z")
Garriage, here we come. (Shmarriage?) ---
**Author:** ![Gangster\_Octopus](https://avatars.discourse-cdn.com/v4/letter/g/a8b319/32.png) [@Gangster\_Octopus](https://boards.straightdope.com/u/Gangster_Octopus)\ **Post date:** [May 26, 2009, 8:08pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/5 "2009-05-26T20:08:59Z")
But what about this section: > [@](#): > > the language of article I, section 7.5, on its face, does not purport to alter or affect the more general holding in the Marriage Cases that same-sex couples, as well as opposite-sex couples, enjoy the constitutional right, under the privacy and due process clauses of the California Constitution, to establish an officially recognized family relationship. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [May 26, 2009, 8:09pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/6 "2009-05-26T20:09:14Z")
But if they’re constitutional, wouldn’t the state be required to offer them for the same reason it was required to legalize gay marriage prior to the amendment? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 26, 2009, 8:28pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/7 "2009-05-26T20:28:28Z")
Well, since that issue wasn’t in front of the court, this decision does not require the state to offer civil unionish marriage-in-all-but-names… but it’s a really really strong indication of how the court would view such a case, if it came. Prop 8 opponents are, in a sense, hoist by their own petard. They sought to paint their opposition as based squarely in the _marriage_ arena, and cannot now credibly argue that they meant prop 8 to curtail any other arrangement the state might offer. This decision is the correct one, but that doesn’t change the fact that Prop 8 itself is a slap in the face to same-sex couples, and I expect we can number its life in single digit years. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [May 26, 2009, 8:31pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/8 "2009-05-26T20:31:32Z")
Well, the next fight is about to begin. At least the 18K marriages performed last year still stand. We really need to see about having another constitutional convention out here. There’s too much in the current one that permits twenty-first century mischief that wasn’t conceivable in 1879. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [May 26, 2009, 8:33pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/9 "2009-05-26T20:33:28Z")
Looks like the court was between a rock and a hard place. If they overturned Prop-8 there’d have been massive hooting and hollering over judicial activism overturning the will of the people. On the other hand letting it stand as envisioned by its proponents seems to suggest it would have been a revision and not an amendment (if not outright federally unconstitutional). I think this latter part was expressed in the dissenting opinion: > [@](#): > > Justice Moreno, in his dissent, comes to the opposite conclusion. Enforcing equal protection requires protection for all aspects of the law, including nomenclature. He even quotes the Court’s previous conclusions in Re Marriage Cases: > > "Denying the designation of marriage to same-sex couples cannot fairly be described as a “narrow” or “limited” exception to the requirement of equal protection; the passionate public debate over whether same-sex couples should be allowed to marry, even in a state that offers largely equivalent substantive rights through the alternative of domestic partnership, belies such a description. “[T]he constitutional right to marry . . . has been recognized as one of the basic, inalienable civil rights guaranteed to an individual by the California Constitution . . . .” (Marriage Cases, 43 Cal.4th at p. 781.) > > Justice Moreno concludes that upholding Proposition 8 - a ballot measure that concretely denies equal protection and creates a legal distinction between two groups for no other reason than a fear and hatred of a minority by the majority - will "emasculat[e] the equal protection clause of the California Constitution as a provision of independent force and effect. " > > SOURCE: [California Supreme Court Thinks Prop 8 Was No Big Deal | HuffPost Latest News](http://www.huffingtonpost.com/emma-rubysachs/california-supreme-court_b_207765.html) So, seems the court waffled and “upheld” Prop-8 while defanging it as much as possible to pass muster. ---
**Author:** ![Gangster\_Octopus](https://avatars.discourse-cdn.com/v4/letter/g/a8b319/32.png) [@Gangster\_Octopus](https://boards.straightdope.com/u/Gangster_Octopus)\ **Post date:** [May 26, 2009, 8:33pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/10 "2009-05-26T20:33:52Z")
> [@Bricker](#): > > Prop 8 opponents are, in a sense, hoist by their own petard. They sought to paint their opposition as based squarely in the _marriage_ arena, and cannot now credibly argue that they meant prop 8 to curtail any other arrangement the state might offer. Do you mean Prop 8 proponents? ---
**Author:** ![B.Serum](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/b.serum/32/14266_2.png) [@B.Serum](https://boards.straightdope.com/u/B.Serum)\ **Post date:** [May 26, 2009, 8:36pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/11 "2009-05-26T20:36:01Z")
> [@Gangster\_Octopus](#): > > Keep in mind, that Civil Unions WERE not the equivalent of marriage, but it seems to me that the SC is basically saying you better make them the equivalent of marriage, they better be equal in every way shape or form to marrigae except, they cannot be called marriage. I did a lot of reading on this back when I was crusading AGAINST Prop 8, and my assessment was that they practically WERE the equivalent of marriage. The slight differences boil down to the administrative setup and dissolution of civil partnerships. In a weird way, California’s far-reaching civil union laws may have taken some steam away from the necessity of the “marriage” word, I’m sorry to say. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [May 26, 2009, 8:40pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/12 "2009-05-26T20:40:57Z")
> [@B.Serum](#): > > I did a lot of reading on this back when I was crusading AGAINST Prop 8, and my assessment was that they practically WERE the equivalent of marriage. The slight differences boil down to the administrative setup and dissolution of civil partnerships. In a weird way, California’s far-reaching civil union laws may have taken some steam away from the necessity of the “marriage” word, I’m sorry to say. While I do not think a court has had a case before it doesn’t “marriage” imply that other states must give Full Faith & Credit to a same-sex marriage in California? Or at the least that argument could be made? IANAL but somehow I am guessing that other states are not obliged to support an arrangement California made for same-sex couples. Once they leave the state they are “un”-married (or “un”-domestic partners or whatever euphemism they use). That is nowhere near equivalent to marriage. ---
**Author:** ![Gangster\_Octopus](https://avatars.discourse-cdn.com/v4/letter/g/a8b319/32.png) [@Gangster\_Octopus](https://boards.straightdope.com/u/Gangster_Octopus)\ **Post date:** [May 26, 2009, 8:45pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/13 "2009-05-26T20:45:09Z")
> [@Whack-a-Mole](#): > > While I do not think a court has had a case before it doesn’t “marriage” imply that other states must give Full Faith & Credit to a same-sex marriage in California? Or at the least that argument could be made? > > IANAL but somehow I am guessing that other states are not obliged to support an arrangement California made for same-sex couples. Once they leave the state they are “un”-married (or “un”-domestic partners or whatever euphemism they use). > > That is nowhere near equivalent to marriage. Nope, the Defense of Marriage Act (DOMA) specifically says that states DO NOT have to recognize same-sex marriages from other states. It also says that the3 fedderal governement may not treat SSM as marriages. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 26, 2009, 8:45pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/14 "2009-05-26T20:45:45Z")
> [@Gangster\_Octopus](#): > > Do you mean Prop 8 proponents? Oops. Yes, as hopefully was clear by context, I meant Prop 8 proponents (or maybe same-sex marriage opponents). 🙂 ---
**Author:** ![Johnny\_L.A](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/johnny_l.a/32/1084_2.png) [@Johnny\_L.A](https://boards.straightdope.com/u/Johnny_L.A)\ **Post date:** [May 26, 2009, 8:47pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/15 "2009-05-26T20:47:29Z")
> [@Bricker](#): > > Prop 8 opponents are, in a sense, hoist by their own petard. They sought to paint their opposition as based squarely in the _marriage_ arena, and cannot now credibly argue that they meant prop 8 to curtail any other arrangement the state might offer. No being gay, I must admint that I don’t pay as much attention to this issue as a citizen should; so please forgive me if I get some specifics wrong. I believe that in Washington State there is a move afoot (or else a law already passed) recognising the right of same-sex couples to enter into a Civil Union that has all of the rights, responsibilities, and protections of marriage; only it is not called ‘marriage’. The opposition, who based their arguments on the traditional definition of ‘marriage’, are crying foul. They say that you can’t just give gay people all the rights\* of married people and then not call it ‘marriage’; therefore this must [not pass/be overturned]. \*‘Give’ rights’ is a colloquialism. IMO rights exist and may be recognised or not recognised; but they can’t be ‘given’ or taken away. ---
**Author:** ![Gangster\_Octopus](https://avatars.discourse-cdn.com/v4/letter/g/a8b319/32.png) [@Gangster\_Octopus](https://boards.straightdope.com/u/Gangster_Octopus)\ **Post date:** [May 26, 2009, 8:51pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/16 "2009-05-26T20:51:14Z")
**Bricker** , if a gay couple now wanted to have the true equivalent of marriage without the word, could they sue the State of California for not offering that option? (I know they could, I mean is that the logical next step, presuming Cali doens’t create such an institution). ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [May 26, 2009, 8:52pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/17 "2009-05-26T20:52:35Z")
> [@Gangster\_Octopus](#): > > Nope, the Defense of Marriage Act (DOMA) specifically says that states DO NOT have to recognize same-sex marriages from other states. It also says that the3 fedderal governement may not treat SSM as marriages. This is FAR from settled by the courts. Oddly the SCOTUS so far has refused to hear these cases. On the face of it though I’d say there are serious constitutional questions at stake. Due Process, Equal Protection and Full Faith & Credit. IIRC Obama wants to repeal the federal DOMA statute. Sooner or later I expect enough states will recognize same-sex marriages such that the SCOTUS will really have to address it. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 26, 2009, 9:19pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/18 "2009-05-26T21:19:25Z")
> [@Gangster\_Octopus](#): > > **Bricker** , if a gay couple now wanted to have the true equivalent of marriage without the word, could they sue the State of California for not offering that option? (I know they could, I mean is that the logical next step, presuming Cali doens’t create such an institution). In my view - yes, absolutely. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [May 26, 2009, 9:21pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/19 "2009-05-26T21:21:37Z")
> [@Gangster\_Octopus](#): > > **Bricker** , if a gay couple now wanted to have the true equivalent of marriage without the word, could they sue the State of California for not offering that option? (I know they could, I mean is that the logical next step, presuming Cali doens’t create such an institution). Except, don’t the civil unions that California already offer already do that? ---
**Author:** ![Gangster\_Octopus](https://avatars.discourse-cdn.com/v4/letter/g/a8b319/32.png) [@Gangster\_Octopus](https://boards.straightdope.com/u/Gangster_Octopus)\ **Post date:** [May 26, 2009, 9:24pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/20 "2009-05-26T21:24:54Z")
> [@Bricker](#): > > In my view - yes, absolutely. Ok, different tack. Does this ruling give the state AG the power to enfoce a Civil Union that is equivalent to a marriage throughout the state? [Next page](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725.md?page=2)