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California Supreme Court Upholds Prop. 8, but Preserves Marriages that Already Occurred

By Kevin Fayle on May 26, 2009 | Last updated on March 21, 2019
In what had largely been the expected outcome, the California Supreme Court upheld Proposition 8, but allowed the approximately 18,000 marriages that took place while same-sex marriage was legal in California to remain in effect.

Voters passed Prop. 8 last November.  The ballot measure restricted the definition of marriage to include only unions between a man and a woman.  Specifically, the measure added text to the California constitution stating that "Only marriage between a man and a woman is valid or recognized in California."
Opponents of the measure argued that Prop 8 was not properly enacted.  California's constitution employs a different procedure for changing the constitution than the United States Constitution.  The California method draws a distinction between an amendment and a revision.  A simple majority of voters on a referendum can approve an amendment, while revisions - changes to the California "governmental plan or framework" - require more.

The plaintiffs in the three cases the California Supreme Court ruled on today asserted that Prop 8 constituted a revision of the California constitution.  The plaintiffs argued that Prop 8 altered the California governmental plan or framework by undermining the function of the judiciary.  In the alternative, plaintiffs contended that the proposition violated a principle that a ballot initiative passed by a majority vote cannot lessen a constitutional right granted to a minority group.

The supreme court struck down these and other arguments.  The proposition did not, the court said, change the California governmental plan and framework since the judiciary would continue to interpret and enforce every provision of the California constitution, despite the fact that it had originally upheld the fundamental right of all Californians to enter into marriage.

The court also found that there was no authority for plaintiffs' argument that a simple majority vote cannot alter a constitutional right enjoyed by a minority group.  The court could find no support for this principle in the procedures listed for altering the state constitution.  Indeed, many state constitutions have provisions preventing the modification of certain sections, the court pointed out, so if California had wished to protect the constitutional rights in question, it could have removed them from the process to change the constitution.

The proposition did not violate the separation of powers enshrined in the California constitution either, according to the court.  Prop. 8 didn't usurp any authority reserved for the judiciary, the court said, since it altered the law according to the initiative process laid out in the California constitution.  The amendment did not attempt to hijack the judiciary by substituting its interpretation of the law for the California Supreme Court's, the court said.

The California Attorney General, Jerry Brown, advanced an argument that, even assuming that it was an amendment and not a revision, Prop. 8 was invalid because it removed rights that were "inalienable" according to the state constitution without demonstrating a compelling state interest.  The court rejected this argument, saying that they did not have the authority to strike down a properly-enacted constitutional amendment simply because it clashed with a right previously contained within the constitution.

The court did, however, find that Prop. 8 did not apply retroactively, thus upholding the marriages that occurred during the period in which same-sex marriages were legal in California.  After examining the language that Prop. 8 inserted into the Constitution, as well as external sources, the court held that there was no clear, unambiguous statement that the change would apply retroactively.  Moreover, the court also suggested that to hold otherwise could create a conflict with the state's constitutional due process clause.

This case has had a long history of many ups and downs for both sides of the issue of gay marriage.  It is likely that litigation will continue, or that both sides will go back to the electorate to overturn the aspects of the court's decision that they disagree with.

This could lead to a unending series of ballot initiatives in California attempting to undo or refine Prop. 8 and the court's decision today.  Which begs the question: is the real problem here the initiative process itself?  Should the legislature alter the constitutional amendment process to make it more difficult to change the rights of a minority group?  This might be an unpopular move since it could be seen as the legislature taking power away from the people, however.

Maybe the best way is through an initiative?

See Also:
California's Battle Over Proposition 8 and Same Sex Marriage Rights (FindLaw)
California Supreme Court Upholds Proposition 8 (Daily Intel)
Prop 8 Survives: Calif. Supremes Uphold Gay Marriage Ban (WSJ Law Blog)
California Prop. 8 Upheld, But Held Not To Affect Existing Same-Sex Marriages (Volokh Conspiracy)
The Moment of Truth for Same-Sex Marriage in California (Above The Law)

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