Why Prop 8 Won’t End California’s Same Sex Marriages

For many progressive voters in California, the election results were bitter-sweet.  While Barack Obama cruised to victory here, the state’s voters also endorsed the elimination of the recently won right of gay and lesbian couples to marry.

sign-773791The most recent election results show that voters appear to have have endorsed California’s Proposition 8 — changing the state Constitution to require that “Only marriage between a man and a woman is valid or recognized in California” — by 5,376,424 (52%) to 4,870,010 (48%) with 99% of the precincts reporting.

Officials have already halted issuing marriage licenses to same sex couples and stopped performing same sex marriages.  California’s right-wing social conservatives, evangelicals, and anti-gay crusaders are celebrating. 

I believe that they’re celebrating too soon.

I would advise the supporters of Prop 8 to temper their celebration until the California Supreme Court rules on whether the fundamental right to marry can be eliminated for same sex couples through the proposition process.

My expectation is that the Supreme Court will find Prop 8 to be invalid and that California’s recognition of same sex marriage will stand.

Even before the election, the American Civil Liberties Union, the Lambda Legal Defense Fund and the National Center for Lesbian Rights filed a writ petition in the California Supreme Court urging the Court to invalidate Proposition 8 if it passes.

The argument is that “Proposition 8 denies the fundamental right to marry to a minority group based on a suspect classification … deemed to be suspect under the equal protection guarantee of the California Constitution … [and that] Proposition 8 constitutes an attempted revision of [the] state Constitution, rather than an amendment, and therefore is invalid because it was not enacted through the process required for a revision…”

While the voters in California have the right to amend their Constitution by majority vote through the use of ballot propositions, any revision of the Constitution’s ‘underlying principles” requires a far more deliberate and complex process involving a two-thirds vote of the legislature followed by the submission of such proposed changes directly to the voters or to a constitutional convention.

The ACLU, the Lambda Legal Defense Fund and the National Center for Lesbian Rights argue that Prop 8’s changes to the Constitution are fundamental in nature, impacting the fundamental rights of a minority, and can not be made by a simple majority vote on a ballot proposition.

I expect that the California Supreme Court will first issue a stay of Prop 8’s implementation, and then hear and decide the case quickly.

I also expect that the Court will rule, by the same 4-3 vote as in the Marriage Cases, that Prop 8 is invalid.

My prediction is that the Court will issue a long and scholarly opinion, authored by Chief Justice Ronald M. George (a Republican, appointed by Governor Pete Wilson, who also authored the Court’s opinion in the Marriage Cases), centered on the statement of former Chief Justice Roger Traynor that if a Constitution “is to retain respect it must be free from popular whim and caprice which would make of it a mere statute.”

California’s same sex marriage will stand.


3 responses to “Why Prop 8 Won’t End California’s Same Sex Marriages

  1. I think the “underlying principles” argument is persuasive, I didn’t know much about CA law before but it had always seemed strange to me that Prop 8 only required a simple majority to pass – although if they do overturn prop 8 then it will just lead to more fear mongering of “activist judges.”

  2. Pingback: Equal Rights Clause? « the controlled release of diamonds

  3. I hope you’re right. But I think we’re in need of an Equal Rights Clause to sit alongside our Equal Protections Clause.


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