California Supreme Court Votes 6-1 To Uphold Proposition 8 and Ban on Same-Sex Marriage

California flagflag-rainbow1While 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.

55 thoughts on “California Supreme Court Votes 6-1 To Uphold Proposition 8 and Ban on Same-Sex Marriage”

  1. Gyges:

    Then why dont they produce cars in Mexico for sale in the US?

  2. Bron,

    Because the cost of importing the number of cars they sell here would be higher then the cost of setting up a new plant and hiring Americans. Also there’s probably not that much of a difference in wages between Germans\Japanese\American workers. There is however a HUGE difference between America and Chinese\Mexican\etc. workers.

  3. Gyges:

    I think it is all of the above, but then why do Japanese and German automakers open plants in the south?

    Eventually with a world economy things will work out in the wash. The Germans will produce high quality cameras, the French wine, the English oh well, Chile- produce, and so forth. Hopefully the governments will stick to free trade and put up no barriers.

  4. Bron,

    I believe I can answer the “why do corporations leave” question, with one of my own. Which is a larger part of a companies expenses, Labor or Taxes?

  5. GWLSM:

    **The big difference, and I think I’m preaching to the choir, between the Democrats and Republicans is that the D’s understand that taxes are necessary to keep the country open for business. Schools, roads, water, sewers, public health.. all these things and more are looked at by the Republicans as some pork-barrel buffet instead of basic parts of infrastructure.
    The way I see it if the corporations were finally forced to pay taxes that they have been dodging by establishing headquarters in the Cayman Islands we’d have plenty of $$ for schools and roads and water and health care.**

    As a believer in low taxes as a spur for economic growth, I think you are wrong about conservatives on this issue. I may be unusual in my beliefs on this subject, but I don’t disagree that some level of taxation is necessary to provide for infrastructure, defense or public safety. The question is how much? Why do the companies go offshore in the first place? To avoid paying taxes or to avoid paying taxes that are too high? There is a limit to the amount of taxes that a business or an individual can pay both financially and psychologically.

    For example Maryland passed an extra tax on millionaires not much an additional 3-6% for state taxes, they thought they were going to raise an additional 100 million dollars. They had around 3,000 millionaires last year and this year they have 2,000. Many moved out of the state and some probably just declined due to the economy. But the point is a large number said no to new taxes and the state lost. Why wouldn’t the state of Maryland try to cut spending, you do it I do it. Why cant governments cut spending, they spend money on marketing orange juice or studying the mating habits of kangaroo rats. Programs like these along with farm subsidies and other government give a ways are a waste of our tax dollars.

    I want my tax dollars spent on things like defense and infrastructure and police and fire. Things that promote industry and protect lives and property. I don’t care about a kangaroo rat or marketing OJ or rich farmers getting paid to not plant peanuts. Cut these types of programs and reduce our taxes so we can have some real economic growth.

  6. Bron,

    You’ve reached a new high in low when you say Tom Selleck, Ted Danson and Steve Guttengerg aren’t good parents. I’ll stipulate Steve hasn’t really done any quality work since those Bibles and the Police Academy, but an ex-PI and bartender/ex-pitcher would make fine parents no matter Guttenberg’s failings.

  7. GWLSM/MikeS:

    good thoughts, thank you. And GWLSM great line by the way-“What it did give me was a healthy sense of autonomy and some really interesting stuff to talk about in therapy.”

    Please don’t think I am anti-gay, I am not and my thoughts on this have nothing to do with gay or straight. I don’t think 2 straight women or 2 straight men could do as well as a female/male combination. Three men and a baby not withstanding.

    Any way as usual a lot to think about.

  8. Gyges:

    “Also, wouldn’t the individual be the elemental unit in a society?”

    you are correct, would it be better to say the family unit is a microcosim of or a basis for society?

    In progression- the individual, the family, the community, the state, the national government. The family is the elemental social unit of society. Thanks for expanding my thought.

  9. Mike

    You wrote: You paint such a bleak, but no doubt true picture. While I guess it has become true for many states since the no-tax mania has been sold to the public, there is so much great about California that it is a pity that people lose track of their own best interests. However, living in Florida as I do, where the political climate is even woollier, I guess the effectiveness of evil PR trumps people’s self interest every time.

    the economic picture is pretty bleak but that does not take away from the amazing natural beauty in CA…

    Our biggest problem and it will be a national one sooner that we all want to consider is water. Southern California is naturally a desert and was never meant to support millions of households with clean drinking water.
    They say, you know who they are, that in the next several decades water will replace oil as the commodity we will be going to war over.
    desalination should have been accomplished decades ago.

    The big difference, and I think I’m preaching to the choir, between the Democrats and Republicans is that the D’s understand that taxes are necessary to keep the country open for business. Schools, roads, water, sewers, public health.. all these things and more are looked at by the Republicans as some pork-barrel buffet instead of basic parts of infrastructure.
    The way I see it if the corporations were finally forced to pay taxes that they have been dodging by establishing headquarters in the Cayman Islands we’d have plenty of $$ for schools and roads and water and health care.

  10. AY,
    Select is better. The whole deal was suspicious to say the least.

  11. GWLSM,
    You paint such a bleak, but no doubt true picture. While I guess it has become true for many states since the no-tax mania has been sold to the public, there is so much great about California that it is a pity that people lose track of their own best interests. However, living in Florida as I do, where the political climate is even woollier, I guess the effectiveness of evil PR trumps people’s self interest every time.

  12. Mike Spindell 1, May 27, 2009 at 12:40 pm

    “Another case of asking the courts to ignore the voting booth in favor of a particular outcome.”

    Tom,
    Do you mean say like in 2,000 when a Republican Supreme Court Majority voted to elect a President, that lost the popular vote and was about to lose the Florida vote, that his brother the governor was trying to steal for him? If that is your example then I agree with you

    *********************************************
    Correction or clarification. Did you mean elect? or Select? Remember Dan Rather, called it early and said Gore won, then about 15 later it was too close to call. Then low and behold, Dan retired or went away? Hmm, did Dick have him fired?

  13. Mike

    You wrote: This verdict was not unexpected. The fact that it had to be adjudicated at all is the disgusting thing. California, with its public initiative laws is a case study in how not to run a government. The State is now on the verge of bankruptcy because they need 2/3 vote to pass a budget in the legislature.
    This came about because of a popular public initiative and had ensured fiscal chaos ever since. Governor Davis was recalled for his inability to deal with the budget. He was replaced by an over-the-hill movie star known for his muscle man competitions and his total inability to act. Much of this came about through public initiative. It is a shame that a great state, with generally good people, is crippled by a constitutional setup, put in by fools or con men. I’m not sure of the history.

    YOu pretty much summed it up correctly. Prop 13, was the landmark legislation in the 1970’s that rolled back property taxes. that, plus the 2/3 vote thing pretty much set the stage for future fiscal insolvency. CA is a big state with huge population centers an agriculture/tech based economy and growing underclass. Our schools were once the envy of the nation.
    We cannot agree on labor, immigration, health care. There is a severe shortage of nurses bottlenecked at the education level that makes it nearly impossible to enter nursing programs because funding for community colleges, once a jewel in our educational crown, is cut back. We are facing public school closures, the shortening of our school year and teacher firings. The lack of health care means that ER’s are the public health clinics for the uninsured and underinsured. It costs about $450/hr to be seen in the ER for a minor illness or injury,slightly less for urgent care centers, if you can get in. The UC system and state universities have cut back on freshman enrollment 5 years in a row and have had to cut back on course offerings, making a 4-year degree program now a 5 year plan and that’s if you don’t change your major.

    I have no idea who our next governor will be although Carly Fiorina, the failed CEO of Hewlett-Packard has been threatening to run. That’s all we need. I can’t think of anything worse — well maybe I could but that would ruin my whole day.

  14. Bron,
    No parent/parents are ever able to be perfect in child rearing. By the same token, no child rearing situation could ever be called optimal. All caring parent/parents do the best they can within their own limitations. I am sure that there a gay parents who would do a better job raising kids, than some straight ones and I am assuming that both sets of parents care.
    Parenting is very hard work and ofttimes your best intentions go astray. This whole issue though is a straw man thrown up to discredit gay marriage by its opponents. I suspect, but have no proof, that many of the most vocal anti-gay marriage types themselves are lousy parents.

  15. Bron

    You wrote: here in lies my point a dad will teach the son to leave the seat up!
    Seriously though as a child of a single parent house (mother only) I speak with some authority on this subject and I dont think children are capably raised by one parent of either sex.

    Me: I have enormous respect for single parents. When my kid was very young my husband was a marketeer, a road warrior, gone for part of every week 10 months of the year and it wasn’t easy being a part-time wife and mostly single mom.

    You: Something gets missed in the childs upbringing, I know it did in mine. Now is it harmful, in my case I dont think it was (although I am very conservative probably from having to do everything on my own so some may disagree on it being harmful). 2 parents of the same sex may offer everything a child needs, I dont know never having had 2 of any combination. But my intuition tells me that it would be the same feeling of missing something. I havent really sat down and thought about this in depth so these thoughts are very basic at best.

    Me: I think we all apply our own upbringing to our ideas about how others should rear their children based on what we got and what we missed out on getting as kids. I had two parents and still pretty much raised myself and my younger sibs. My parents were wildly social and were more interested in their social calendar than anything going on in our young lives preferring to leave the details to the help. Having parents of any composition who are actively engaged in child rearing is much more meaningful than the gender of the parents.

    You: Not having a father left a void in my life, I assume that not having a mother leaves a void in someones life too. An effeminate father is not a mother nor is a masculine woman a father. Is it harmful probably not as long as the chilren are loved and cared for, is it optimal probably not.

    Me: I think that you are applying stereotypes to gay/lesbian families that are based on your particular experience and political point of view. I think I’d rather have had gay or lesbian parents who were there to make sure I had breakfast and did my homework then the hetero parents I had who did neither. I am not speaking of abuse or neglect … just pointing out that coming from what appeared to be the ideal 50’s family was not so ideal under the surface. What it did give me was a healthy sense of autonomy and some really interesting stuff to talk about in therapy.

    You: If I was an adoption agent I would try and place chidren with male/female parents and then move on from there with single parents being the bottom of the list. So I dont disagree with 2 mommies or 2 daddies but they would be my second tier candidates all things being equal. Single parents either male or female would be at the bottom. My opinions on this are heavily influenced by my own experiences.

    Me: the use of language like ‘second tier” is exactly what the argument is about. 2nd tier, 2nd class, not good enough, not the first choice, all seem highly discriminatory to me, and with all due respect for you say nothing about the ability or commitment that loving, capable gay/lesbian parents can bring to a family when compared to some of the horrific things we all know can happen in hetero families when children are not loved, not cared for, abused or neglected.

    The truth is that no child can choose his/her parents. you get what you get and when we look back as adults our ideas of family are influenced by myriad components, some ideal and optimal and some sorely lacking.
    in defense of my parents, still married after 64 years and who still come first with each other, they did not do the best that they could. They did what they wanted to do and when I became a parent i decided to be a very different kind of parent. I think my husband and I have done a decent job but if I were a lesbian I still think I’d be the same sort of parent and still be able to raise decent, hard-working kids, with the love of learning, good manners and a secure sense of self.

  16. This verdict was not unexpected. The fact that it had to be adjudicated at all is the disgusting thing. California, with its public initiative laws is a case study in how not to run a government. The State is now on the verge of bankruptcy because they need 2/3 vote to pass a budget in the legislature.
    This came about because of a popular public initiative and had ensured fiscal chaos ever since. Governor Davis was recalled for his inability to deal with the budget. He was replaced by an over-the-hill movie star known for his muscle man competitions and his total inability to act. Much of this came about through public initiative. It is a shame that a great state, with generally good people, is crippled by a constitutional setup, put in by fools or con men. I’m not sure of the history.

  17. “Another case of asking the courts to ignore the voting booth in favor of a particular outcome.”

    Tom,
    Do you mean say like in 2,000 when a Republican Supreme Court Majority voted to elect a President, that lost the popular vote and was about to lose the Florida vote, that his brother the governor was trying to steal for him? If that is your example then I agree with you.

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