Waldlaw Blog

Tuesday, May 26, 2009

The CA Supreme Court Ruling on Prop 8

Here is my best effort -- in "real time" -- to digest the Supreme Court's very long opinion on Prop 8. I reserve the right to update and revise this after a more luxurious reading of the decision. In its decision today, the California Supreme Court did several things: (1) They reaffirmed that discrimination against lesbians and gay men will be subject to the highest level of scrutiny from the courts ("strict scrutiny" in legal parlance); (2) They ruled that "although Proposition 8 eliminates the ability of same-sex couples to enter into an official relationship designated as 'marriage,' in all other respects those couples continue to possess, under the state constitutional privacy and due process clauses, 'the core set of basic substantive legal rights and attributes traditionally associated with marriage,' including, 'most fundamentally, the opportunity of an individual to establish -- with the person with whom the individual has chosen to share his or her life -- an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.' [Quoting from their marriage decision last year!] Like opposite sex couples, same-sex couples enjoy this protection not as a matter of legislative grace, but of constitutional right." In other words, our rights as established by our state domestic partnership laws remain intact, and are constitutionally protected -- but the court is now splitting hairs and finding that the designation of "marriage" is not itself constitutionally important, and therefore can be taken away from us without offending our state Constitution. (For an excellent counter to this argument, just read the court's opinion from last year -- or my blog on the issue from March 26 where I reminded the court of what they said.) (3) The court concluded that limiting access to "the designation of marriage" -- as opposed to the rights and responsibilities accorded committed couples through both marriage and domestic partnership -- has only a "limited effect on the fundamental rights of privacy and due process and the guarantee of equal protection of the laws under the state Constitution as interpreted by the majority opinion in the Marriage Cases." Therefore, this "narrowly drawn" exception to the fundamental constitutional rights of due process and equal protection is fairly categorized as an "amendment to" and not a "revision of" the Constitution. (Remember, this is the court speaking, not me -- if you are now yelling at the computer, don't blame me -- I'm just trying to explain what they did, not justify it!) (4) The court unanimously held that marriages by same-sex couples entered into before November 5, 2008 continue to be valid and recognized in California. "[S]ame-sex couples who married after the decision in the Marriage Cases ... was rendered, and before Proposition 8 was adopted, acquired vested property rights as lawfully married spouses with respect to a wide range of subjects, including, among many others, employment benefits, interests in real property, and inheritances. These couples' reliance upon this court's final decision in the Marriage Cases was entirely legitimate. A retroactive application of the initiative would disrupt thousands of actions taken in reliance on the Marriage Cases by these same-sex couples, their employers, their creditors, and many others, throwing property rights into disarray, destroying the legal interests and expectations of thousands of couples and their families, and potentially undermining the ability of citizens to plan their lives according to the law as it has been determined by this state's highest court. ... Accordingly, ... we conclude that Proposition 8 cannot be interpreted to apply retroactively so as to invalidate the marriages of same-sex couples that occurred prior to the adoption of Proposition 8. Those marriages remain valid in all respects." And now, the $64,000 question: what about marriages entered into by same-sex couples outside of California??? All the court had to say on this issue was: "We have no occasion in this case to determine whether same-sex couples who were lawfully married in another jurisdiction prior to the adoption of Proposition 8, but whose marriages were not formally recognized in California prior to that date, are entitled to have their marriages recognized in California at this time." Honestly, I do not know what the phrase "not formally recognized in California prior to that date" means. If a Massachusetts same-sex couple, married in Massachusetts prior to adoption of Proposition 8, came to California for vacation last summer and went around telling everyone here they were married, was their marriage "formally recognized in California"?? Certainly their Massachusetts marriage was recognized in California last summer. But what does the word "formally" mean in this context??? Does this mean that a same-sex couple married in Massachusetts on November 4 has a marriage recognized by the state of California, but a same-sex couple married in Massachusetts on November 6 does not?? Even if all other relevant considerations are identical?? Isn't there an equal protection problem here (equal protection embodying the principle that it is unconstitutional to treat similarly situated people differently without good cause)? I predicted that the court would leave us with an unmanageable mess if they upheld Proposition 8, and they seem to have done just that. More later, as I figure some of this out....


  • Thank you Deborah, for doing this blog - on this day when I feel saddened and angry about this decision, among so many other emotions (even having somewhat expected it, until it actually happened), your writing makes me feel commiserated with and justified in my disbelief and outrage!

    Thanks, Emily Trexel

    By Blogger Emily, at 1:51 PM  

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