That’s my takeaway from the California Supreme Court decision today to uphold Proposition 8. Sad and depressing, yes. Was the court wrong? It’s difficult to say. I actually read most of the 100+ page decision on the way home from work today and I have to say that what they upheld was the process – not actually hetero marriage. The Court’s view of the proposition was quite narrow, focusing on the arguments as they had been presented in their courtroom almost 90 days ago.
I’m not a lawyer, but my interpretation after reading (quickly, I might add)Because, they said, gays have essentially not lost any rights they had BEFORE Prop 8 (e.g. domestic partnerships, ability to adopt, etc.) and because the state wasn’t substantially altered AFTER the decision, Prop 8 can stand as a legal amendment to the California constitution. Opponents, including Attorney General Jerry Brown, had argued that a revision (involving a much more substantial process including public and legislative vote) was necessary:
In addressing the issues now presented in the third chapter of this narrative, it is important at the outset to emphasize a number of significant points. First, as explained in the Marriage Cases, supra, 43 Cal.4th at page 780, our task in the present proceeding is not to determine whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution. Regardless of our views as individuals on this question of policy, we recognize as judges and as a court our responsibility to confine our consideration to a determination of the constitutional validity and legal effect of the measure in question. It bears emphasis in this regard that our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values.
But, the issue I am trying to get my arms around is the fact that domestic partnerships or civil unions (or whatever you want to call them) are NOT the same as hetero marriage under the law. Couples cannot file a joint tax return, for example. Justice Moreno’s dissent opinion is probably the most thought-provoking part of the decision:
For reasons elaborated below, I conclude that requiring discrimination against a minority group on the basis of a suspect classification strikes at the core of the promise of equality that underlies our California Constitution and thus “represents such a drastic and far-reaching change in the nature and operation of our governmental structure that it must be considered a ‘revision’ of the state Constitution rather than a mere ‘amendment’ thereof.” (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 221 (Amador Valley).) The rule the majority crafts today not only allows same-sex couples to be stripped of the right to marry that this court recognized in the Marriage Cases, 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…
…We recognized in the Marriage Cases that “draw[ing] a distinction between the name for the official family relationship of opposite-sex couples (marriage) and that for same-sex couples (domestic partnership)” (Marriage Cases, supra, 43 Cal.4th at p. 782) “impinges upon a same-sex couple’s fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple.” (Id. at p. 784.) Denying same-sex couples the right to call their relationships marriages treats them as “ ‘second-class citizens.’ ” (Id. at p. 785.) As we observed in the Marriage Cases, “there exists a substantial risk that a judicial decision upholding the differential treatment of opposite-sex and same-sex couples would be understood as validating a more general proposition that our state by now has repudiated: that it is permissible, under the law, for society to treat gay individuals and same-sex couples differently from, and less favorably than, heterosexual individuals and opposite-sex couples.” (43 Cal.4th at p. 855.)
Describing the effect of Proposition 8 as narrow and limited fails to acknowledge the significance of the discrimination it requires. But even a narrow and limited exception to the promise of full equality strikes at the core of, and thus fundamentally alters, the guarantee of equal treatment that has pervaded the California Constitution since 1849. Promising equal treatment to some is fundamentally different from promising equal treatment to all. Promising treatment that is almost equal is fundamentally different from ensuring truly equal treatment. Granting a disfavored minority only some of the rights enjoyed by the majority is fundamentally different from recognizing, as a constitutional imperative, that they must be granted all of those rights. Granting same-sex couples all of the rights enjoyed by opposite-sex couples, except the right to call their “ ‘officially recognized, and protected family relationship’ ” (maj. opn., ante, at p. 7) a marriage, still denies them equal treatment.
There you have it. The dissent. The good news is that the Court upheld the 18,000 same-sex marriages performed between their decision last year and Prop 8. The unfortunate part of this is that the amendment itself says California only recognizes marriage between a man and a woman, so the decision contradicts the state constitution. This, along with the “less than equal” status awarded to gays, leaves the door open for the wingnuts to fight these 18,000 marriages. Some have already vowed to fight to invalidate them.
Of course, the religious nuts continue to make themselves “victims” of gay marriage. From the San Francisco Chronicle:
But they said the fight is not over and vowed to continue battling same-sex marriage and what they consider the harassment of people who disagree with it.
Attorney Brad Dacus, president of the Pacific Justice Institute – which filed several briefs with the court in support of Prop. 8 – said the court decision was a victory for democracy and a victory for the civil rights of clergy, county clerks and others who did not want “to be forced by the government to approve of same-sex marriage.”
The fight will continue…