- The Washington Times - Thursday, May 28, 2009

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 …

“Nonetheless, it is crucial that we accurately identify the actual effect of Proposition 8 on same-sex couples’ state constitutional rights … it is only the designation of marriage - albeit significant - that has been removed by this initiative process.”

Q: Are the estimated 18,000 gay marriages performed between June 16 and Nov. 5, 2008 still valid?

Yes. Proposition 8, which says, “Only marriage between a man and a woman is valid or recognized in California,” obviously “does not contain a retroactivity provision, that is, a provision explicitly stating that the measure is to have a retroactive effect.”

“Accordingly, the marriages of same-sex couples performed prior to the effective date of Proposition 8 remain valid and must continue to be recognized in this state.”

Q: Doesn’t the plain language of Proposition 8 make it clear that it affected both pre-existing and future same-sex marriages?

No. Although a sentence in the Voter Information Guide said Proposition 8 would apply to marriages “regardless of when or where performed,” that is “insufficient to demonstrate, clearly and unambiguously, that the voters must have intended a retroactive application.”

Moreover, interpreting Proposition 8 to apply retroactively “would create a serious conflict between the new constitutional provision and the protections afforded by the state due process clause” to same-sex couples who legally married last year.

Q: Proposition 8 disallows same-sex marriage in California, but does it also mean California will not recognize out-of-state same-sex marriages?

Yes. “It is clear that the section added to the California Constitution by Proposition 8 … applies both to marriages performed in California and to those performed in other jurisdictions.”

Excerpt from Justice Moreno’s dissenting opinion:

Today’s ruling “not only allows same-sex couples to be stripped of the right to marry that this court recognized … it places at risk the state constitutional rights of all disfavored minorities. It weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority. I therefore dissent.”

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