Everything you thought you knew about today’s Calif Supreme Court Ruling on Prop 8 may be wrong!
While the initial analysis of the decision treated the ruling as a defeat for gay rights activists, an examination of pages 36-37 suggest otherwise:
The scope of the exception created by Proposition 8, however, necessarily is determined and limited by the specific language and scope of the new constitutional provision added by the ballot measure. Here the new constitutional provision (art. I, § 7.5) provides in full: “Only marriage between a man and a woman is valid or recognized in California.” By its terms, the new provision refers only to “marriage” and does not address the right to establish an officially recognized family relationship, which may bear a name or designation other than “marriage.” Accordingly, although the wording of the new constitutional provision reasonably is understood as limiting use of the designation of “marriage” under California law to opposite-sex couples, and thereby modifying the decision in the Marriage Cases, supra, 43 Cal.4th 757, insofar as the majority opinion in that case holds that limiting the designation of “marriage” to the relationship entered into by opposite-sex couples constitutes an impermissible impingement upon the state constitutional rights of privacy and due process, the language of article I, section 7.5, on its face, does not purport to alter or affect the more general holding in the Marriage Cases that same-sex couples, as well as opposite-sex couples, enjoy the constitutional right, under the privacy and due process clauses of the California Constitution, to establish an officially recognized family relationship. Because, as a general matter, the repeal of constitutional provisions by implication is disfavored (see, e.g., In re Thiery S. (1979) 19 Cal.3d 727, 744; Warne v. Harkness (1963) 60 Cal.2d 579, 587-588), Proposition 8 reasonably must be interpreted in a limited fashion as eliminating only the right of same-sex couples to equal access to the designation of marriage, and as not otherwise affecting the constitutional right of those couples to establish an officially recognized family relationship.
(emphasis added.)
The majority went on for almost 140 pages. In brief, their points – which I’ll next explore in somewhat greater depth – are these:
(1) The California Constitution is easy to amend, and that’s not something we can change:
(2) The deprivation of rights isn’t that big a deal, really, because all that’s been removed by Prop 8 is the word “marriage” rather than the rights that go with it;
(3) Based on precedent and constitutional history, Prop 8 is a permissible amendment to the state’s constitution – not a more substantial revision, which would require prior submission to the legislatures (and a 2/3 approval) before going to the voters;
(4) There’s no separation of powers problem here: Everyone’s doing their constitutional job; and
(5) The Attorney General’s “novel” argument that certain rights are “inalienable” and therefore immune from the vagaries of majority rule, has no traction.
A commenter at Andrew Sullivan’s site writes:
Have been through the Prop 8 opinion and dissents. It appears that this is a blockbuster pro-gay-rights decision, restricting the effect of Prop 8 to the effect of removing the designation of gay civil unions as “marriage,” but upholding all equal rights previously declared by the Court; and, suggesting that if the opponents of gay rights were to try to restrict equal union rights for gays by constitutional change, such change would be an Amendment (not a revision) and thus would be procedurally much more difficult to accomplish. Being able to lay claim to the word “marriage” is important, but in all other respects this appears to be a spectacular decision in favor of gay rights..
The following bloggers are still untangling the decision, but they see it as a victory for marriage equality activists.
IT at Friends of Jake.