While buried by the news of the Sotomayor nomination, yesterday was a disappointing day for many of us who favor same-sex marriage. The California Supreme Court voted 6-1 to uphold Proposition 8, which banned same-sex marriage. The only good news for couples is that the Court ruled that the 18,000 unions licensed before the proposition would not be invalidated.
The ruling was no surprise. As noted in an earlier entry, the oral arguments showed a lack of support for striking down Proposition 8 despite the 4-3 vote in May 2008 finding that a law restricting marriage to a man and a woman was discriminatory and invalid.
Frankly, it would have been viewed as judicial activism for the Court to reject such a public vote. This was the first point that the justices raised in their decision:
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.
It is nevertheless a blow to see California of all states fall back into its prior status as a state rejecting same-sex marriages. It was particularly shocking to see so many Obama voters flock to the support of this proposition. It shows that this is a hard struggle that crosses political and social lines.
It will create a curious situation with thousands of recognized gay and lesbian couples living in the state while other couples are denied the same status. There will also be lingering questions under the full faith and credit clause as such couples (as well as couples from states like Iowa, Massachusetts, Connecticut, Maine and possibly D.C.) seek recognition in other states.
I have long supported doing away with the term “marriage” in favor of a uniform civil union standard for all couples regardless of gender. However, we are faced with a long struggle over same-sex marriage. I remain convinced that the law and society trends naturally towards greater pluralism and acceptance. Unless this trend is halted by a constitutional amendment, I believe that a majority of states will recognize same-sex marriage in our lifetime. For a prior column, click here.
For a copy of the opinion, click here.
For the full story, click here.