Guest Column by OutNow magazine
The California Supreme Court has upheld Proposition 8 by a 6-1 vote, taking away the rights of gay people to marry in California. But interestingly, the court left a few loopholes.
The court unanimously held that the scope of Proposition 8 is narrow, limited solely to restricting the use of the term “marriage” to opposite-sex couples, leaving the door open to establishing some form of marriage equality if given another name besides “marriage,” according to a release from the California Supreme Court.
The majority opinion was authored by Chief Justice Ronald M. George, and was joined by Justices Joyce L. Kennard, Marvin R. Baxter, Ming W. Chin and Carol A. Corrigan. In addition to signing the majority opinion, Justice Kennard filed a separate concurring opinion.
Justice Carlos R. Moreno had a different opinion, concluding that Proposition 8 is invalid because it is not a lawful amendment of the California Constitution.
Analyzing the scope of Proposition 8, the majority opinion explains that, contrary to petitioners’ assertions, the initiative measure does not “entirely repeal” or “abrogate” the aspect of a same-sex couple’s state constitutional right of privacy and due process.
The judges said the amendment does not “fundamentally alter” the state’s constitutional equal protection principles.
Instead, it carves out a limited exception to these constitutional rights by reserving the official designation of the term “marriage” for the union of opposite-sex couples, but leaves undisturbed all of the other aspects of a same-sex couple’s constitutional right to establish an officially recognized and protected family relationship and to the equal protection of the laws.
The judges wrote that they don’t minimize the significance of the term “marriage” holds for both the proponents and opponents of Proposition 8.
The courts concluded that under current law, the people of California has the right to “modify preexisting constitutional rights” through the initiative process. While the courts recognize that other states have restrictions on how its constitution can be revised, the California constitution has no such restrictions, according to the courts.
Judge Moreno stood alone in saying that “Proposition 8 is not a lawful amendment to the California Constitution because it alters the equal protection clause to deny same-sex couples equal treatment, explaining 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.’”
“Denying the designation of marriage to same-sex couples cannot fairly be described as a ‘narrow’ or ‘limited’ exception to the requirement of equal protection,” but adds that “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,” Moreno wrote in the opinion.
“Promising equal treatment to some is fundamentally different from promising equal treatment for 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,” Moreno wrote
Justice Moreno declares that “Proposition 8 represents an unprecedented instance of a majority of voters altering the meaning of the equal protection clause by modifying the California Constitution to require deprivation of a fundamental right on the basis of a suspect classification.”
He states that “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” and “weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority.”
This analysis is published courtesy of OutNow magazine.
Most Californians OPPOSE GAY MARRIAGE, and most Californians OPPOSE ILLEGAL IMMIGRATION.
I find it so frustrating that a select few… and I emphasize that word “select few” are given the opportunity to portray themselves as the voice of a generation or of an entire population.
I am sorry but you guys on the extreme left do not speak for me, or for the vast majority of sane, decent, Californians, nevermind Americans!
This is the “ten-foot pole” blog.
Wow #2, “vast majority?” Using what type of math? Within a few years, a majority of Californians will demonstrate their support for equality, forever relegating the rest of you to the minority (and leaving reactionary commenters on SJI with more to complain about). It’s unfortunate that voters are left to decide civil rights issues, but there we are in California, while the rest of the nation zooms past.
Equating gay marriage and illegal immigration? How low can you sink?
#4-Anonymous,
Unfortunately, many people who oppose Gay Marriage are not able to understand the difference between “Equal Rights/Civil Rights,” and their own religious beliefs, or personal bias. It was the same with inter- racial marriage.
As to the comments about immigrants, they helped keep Gay Marriage from staying legal, and were instrumental in getting Prop 8 passed. Go figure why these Prop 8 supporters aren’t grateful to this group.
Disclosure:
I FULLY support Gay Marriage, and the rights of those to oppose it. God Bless America!
I have not read the court’s opinion, and so I probably shouldn’t say anything…but I will anyway.
From the published reports, the use of the word “marriage” was important to the majority.
The problem with this entire issue, in my view, is that word. “Marriage” in the modern world is a religious institution, not a civil institution. The entry of government into the “marriage” business was a big mistake. I guess they needed the license fees.
Everyone, gay or straight, or transgender, or whatever else they can dream up, should enter into a “civil union” (or some other words, if you like, except “marriage”). Everyone who enters into such a civil union should have exactly the same rights and responsibilities toward each other as everyone else who does so.
If religious folks want to add to their civil union a religious ceremony, a “marriage”, that’s their right too.
Government should get out of the “marriage” business immediately, and get into the “civil union business” exclusively. There might be some minor word issues such as “husband”, “wife”, etc., but they are minor issues, which can be cleared up.
ALL people should be able to have equal rights and equal responsibilities to their respective partners, kids, etc. We can easily do that by eliminating “marriage” from the equation.
And, no, I’m not a religious nut. I am a nonbeliever.
Here’s a piece from a young writer at De-Bug on the Prop.8 passing:
http://www.siliconvalleydebug.com/story/050109/stories/Prop8.html
#7—the characterization of anything depends upon whether your ox was gored or not.
john michael has it right: marriage between two people is a deal between two people, not with the gov’t. People should be allowed to set up the contract any way they like. The whole prop 8 brouhaha most notably persuades that there should be *no* government view or sanction of how people choose to form their relationships, as long as it doesn’t abrogate other’s rights, cause damage to others, etc. That’s the Proposition on the balot I’d like to see.
#9. So that means equal rules on taxation, visitation, immigration, etc? Currently, those do not exist, and without them it doesn’t matter what the deal is between two people. Some pairs of people get the benefits, others don’t.
#10—all peaople should get the same deal from the government. Using the word “marriage” injects a religious notion that needs to be eliminated.
I hope you didn’t mean to include marriages or unions of convenience to allow someone to enter or to remain in this country who would not otherwise be allowed to remain here.
Odd how the judges interpret two laws and only one makes them “activists.”
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