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The California High Court’s Reluctant Reasoning in Upholding Prop 8

The essential part of the California Supreme Court’s analysis in upholding Proposition 8‘s ban on same-sex marriage today is that the court decided that Prop 8 was an “amendment” to the state constitution, rather than a “revision” to the constitution. An amendment, under California law, can be made by a majority of voters. Given that the same California Supreme Court had previously struck down a law that limited marriage to a union between a man and a woman, the tone of the opinion suggests that the justices themselves weren’t happy with it, but that they had to follow California’s unusual laws when it comes to amending its constitution.

Here’s the court’s reasoning:

Contrary to petitioners’ assertion, **Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right of privacy and due process **that was analyzed in the majority opinion in the Marriage Cases — that is, the constitutional right of same-sex couples to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage” (Marriage Cases, supra, 43 Cal.4th at p. 829). Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion. Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of 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. [...]

Taking into consideration the actual limited effect of Proposition 8 upon the preexisting state constitutional right of privacy and due process and upon the guarantee of equal protection of the laws, and after comparing this initiative measure to the many other constitutional changes that have been reviewed and evaluated in numerous prior decisions of this court, we conclude Proposition 8 constitutes a constitutional amendment rather than a constitutional revision [...]

We agree with petitioners that the state constitutional right to equal protection of the laws unquestionably represents a long-standing and fundamental constitutional principle (a constitutional principle that, as we already have explained, has not generally been repealed or eliminated by Proposition 8). There are many other constitutional rights that have been amended in the past through the initiative process, however, that also are embodied in the state Constitution’s Declaration of Rights and reflect equally long-standing and fundamental constitutional principles whose purpose is to protect often unpopular individuals and groups from overzealous or abusive treatment that at times may be condoned by a transient majority. Neither the language of the relevant constitutional provisions, nor our past cases, support the proposition that any of these rights is totally exempt from modification by a constitutional amendment adopted by a majority of the voters through the initiative process. [Emphasis added.]

In other words, the California court ruled today that voters can modify constitutional rights in California, so long as they don’t take them away altogether.

The decision is likely to lead to new voter initiatives to overturn Proposition 8, which passed with 52 percent of the vote in California.

It’s worth noting that the court’s May 15, 2008 ruling that the state constitution (before it was amended) does protect gay marriage will retain some influence. As The Los Angeles Times notes:

Sexual orientation will continue to receive the strongest constitutional protection possible when California courts consider cases of alleged discrimination. The California Supreme Court is the only state high court in the nation to have elevated sexual orientation to the status of race and gender in weighing discrimination claims.

*TWI is on Twitter. Please follow us here. *

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