Calif. high court explains ban on gay marriage

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The California Supreme Court on Tuesday upheld Proposition 8, a state constitutional amendment passed by voters in 2008 that says only the union of a man and a woman can be called a marriage. The amendment was intended to counteract the court’s 2008 landmark ruling In Re Marriage Cases, which legalized gay marriage.

While the court upheld Proposition 8, it clarified that the amendment was very limited in scope and did not undo other protections for gay couples that the court found in its May 2008 decision, nor did it retroactively invalidate the estimated 18,000 gay marriages performed between June 17 and Nov. 5, 2008.

The following are excerpts of the court’s 185-page ruling in Strauss v. Horton, in which six justices concurred and one, Justice Carlos Moreno, dissented.

Q: What was the core issue before the court?

The principal issue was whether “the constitutional change embodied in Proposition 8 constitutes a constitutional revision rather than a constitutional amendment and, as such, may not be adopted through the initiative process.”

Q: Is Proposition 8 a lawful amendment to the California Constitution?

Yes. “[T]he 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 … In light of the discrete subject area affected by Proposition 8, and … the limited effect of the measure on that subject area, we conclude that Proposition 8 cannot plausibly be characterized as a constitutional revision.

Therefore, “we conclude that Proposition 8 constitutes a permissible constitutional amendment (rather than an impermissible constitutional revision).”

Q: Does Proposition 8 violate the separation-of-powers doctrine under the California Constitution?

No. “Because the California Constitution explicitly recognizes the right of the people to amend their state Constitution through the initiative process, the people, in exercising that authority, have not in any way impermissibly usurped a power allocated by the Constitution exclusively to the judiciary or some other entity or branch of government.”

Q: What happens to the constitutional right to marriage for same-sex couples that the court found in its landmark May 2008 ruling?

“Proposition 8 does not entirely repeal or abrogate” same-sex couples’ rights of privacy and due process that were analyzed in 2008 ruling, i.e. their constitutional rights 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.”

“Instead, the measure [Proposition 8] 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 … 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.”

Q: Does this mean the word “marriage” isn’t important?

“By clarifying this essential point, we by no means diminish or minimize the significance that the official designation of ‘marriage’ holds for both the proponents and opponents of Proposition 8; indeed, the importance of the marriage designation was a vital factor in the majority opinion’s ultimate holding in the Marriage Cases …

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About the Author
Cheryl Wetzstein

Cheryl Wetzstein

Cheryl Wetzstein covers family and social issues as a national reporter for The Washington Times. She has been a reporter for three decades, working in New York City and Washington, D.C. Since joining The Washington Times in 1985, she has been a features writer, environmental and consumer affairs reporter, and assistant business editor.

Beginning in 1994, Mrs. Wetzstein worked exclusively ...

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