- The Washington Times - Wednesday, May 27, 2009

Both sides of the debate over same-sex marriage said Tuesday’s California Supreme Court decision upholding Proposition 8, the second defeat in a row for gay-marriage supporters, may have ended the legal battle on the ballot initiative but not the fight over the issue.

In a 6-1 decision, the court rejected arguments that the November ballot measure amending the state constitution to state that marriage is the union of one man and one woman violated the “inalienable” rights of same-sex couples to marry. The justices, however, did let stand the same-sex marriages performed before the initiative’s passage.

“The identification of a right as ‘inalienable’ has never been understood to mean that such right is exempt from any limitation or to preclude the adoption of a constitutional amendment that restricts the scope of such a right,” Chief Justice Ronald M. George said in the majority opinion.

The 136-page ruling was the second recent setback for gay-marriage supporters, after the New Hampshire House rejected a proposal to put religious-conscience protections in the state’s bill. Gov. John Lynch had said he would veto the bill without such a provision. The setbacks followed victories in the supreme courts of Iowa and Connecticut and the legislatures of Vermont and Maine.

Both sides of the gay-marriage debate took what they could from the decision, which ends the state court fight, though they agreed that California’s battle over gay marriage may spread to new venues.

The pro-gay Courage Campaign announced immediately that it would move to place a gay-marriage initiative on the 2010 California ballot.

“While we are pleased that the court recognized the legal marriages of 18,000 same-sex couples married in 2008, we are saddened by the Prop 8 decision,” Chairman Rick Jacobs said in a statement. “But we don’t have time to mourn the failure of the state court to restore marriage equality to California. It’s time to go on offense.”

On the other side, Family Research Council President Tony Perkins called the exemption for the existing marriages “a ticking time bomb” that could give a federal court an opening to declare Proposition 8 as a violation of the U.S. Constitution.

“You have people in the same state being treated differently, so you have an equal protection clause challenge in the making,” Mr. Perkins said.

But proponents of traditional marriage generally praised the decision and commended the court for obeying the will of the people.

“We’re grateful this court did not overturn the civil rights of all Californians to amend our own constitution,” said Brian Brown, executive director of the National Organization for Marriage, one of the prime movers behind Proposition 8. “The 7 million Californians who worked hard to protect marriage as the union of husband and wife are breathing easier today.”

Conservatives were prepared to launch a recall effort against the California Supreme Court justices if Proposition 8 had been overturned. While gratified by the ruling, supporters of traditional marriage said they were nonetheless troubled by the court’s decision to recognize the 18,000 same-sex marriages performed last year in the five-month window between June and November.

“Unfortunately, the court chose to ignore the plain meaning of Proposition 8 and will force state recognition of same-sex ‘marriage’ licenses issued last year,” Mr. Perkins said. “The court’s recognition of these ‘marriages’ clearly seeds the ground for a possible legal battle before the U.S. Supreme Court.”

In its decision, the court justified its holding by saying constitutional amendments are not considered retroactive unless they are clearly written that way, which the justices said Proposition 8 was not.

They also said applying Proposition 8 retroactively would be too disruptive, “throwing property rights into disarray, destroying the legal interests and expectations of thousands of couples and their families, and potentially undermining the ability of citizens to plan their lives according to the law as it has been determined by this state’s highest court.”

The court also rejected the argument made by proponents of gay marriage that Proposition 8 changed the meaning of the state constitution’s equal protection clause so radically that it was a revision rather than an amendment to the document. “Revisions” have to go through a different set of procedures than do “amendments,” which would have meant Proposition 8 was not validly passed.

“In a sense, petitioners’ and the attorney general’s complaint is that it is just too easy to amend the California Constitution through the initiative process. But it is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it,” the ruling said.

California Gov. Arnold Schwarzenegger, a Republican who voted against Proposition 8, said in a statement that he would uphold the court’s ruling.

“While I believe that one day either the people or courts will recognize gay marriage, as governor of California I will uphold the decision of the California Supreme Court,” Mr. Schwarzenegger said. “Regarding the 18,000 marriages that took place prior to Proposition 8’s passage, the Court made the right decision in keeping them intact.”

Referring to the heated protests that followed the passage of Proposition 8, Mr. Schwarzenegger added, “I also want to encourage all those responding to today’s Court decision to do so peacefully and lawfully.”

Moments after the decision was announced, the crowd of gay-marriage advocates outside the San Francisco courthouse shouted, “Shame on you.” The Associated Press reported that Assemblyman Tom Ammiano of San Francisco said the ruling would create “apartheid” in California.

In a bit of legal irony, it was Chief Justice George who penned the 4-3 opinion one year ago giving same-sex couples the right to marry in California, stating that laws limiting marriage to one man and one woman violated the “fundamental constitutional right to form a family relationship.”

What changed was the passage of Proposition 8. In the aftermath of the court’s decision, conservative groups gathered 1.1 million signatures to place the traditional-marriage constitutional amendment on the ballot.

The measure passed by a margin of 52 percent to 48 percent, shocking many analysts who had predicted the initiative would fail in a year that favored Democratic and liberal candidates, led by Democratic presidential candidate Barack Obama.

Analysts later found that the surge in minority voters, inspired by Mr. Obama’s presence on the ticket, helped push Proposition 8 over the top. Exit polls showed that most black and Hispanic voters who checked the box for Mr. Obama also backed Proposition 8.

The vote touched off an outcry among gay-rights groups and activists, who launched days of protests across the state. Protesters boycotted businesses whose owners supported Proposition 8, and contributors to the Proposition 8 campaign reported being threatened and abused by angry gay-marriage supporters.

The Church of Jesus Christ of Latter-day Saints came under attack for its support of Proposition 8. A Mormon temple in Westwood, Calif., was evacuated after receiving in the mail a packet of white powder, which turned out to be nontoxic.

Another envelope of white powder was mailed to the church’s headquarters in Salt Lake City. That substance also proved to be harmless, but a room was decontaminated and a building shut down for more than an hour.

• Valerie Richardson can be reached at vrichardson@washingtontimes.com.

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