Proposition 8 Ruling

The California Supreme Court turned in a disappointing but predictable and legally coherent ruling on Proposition 8, the ballot measure that overruled gay marriage in California last November. The Court, presented with a narrow argument, decided by a 6-1 vote that the State Constitution gives the majority of voters extensive powers to rewrite the Constitution, and that therefore their will should stand. The decision was about a technical or structural issue, not about equality in the broad sense.

The Court showed what it really thinks about marriage equality by ruling in the same decision that the 18,000 same-sex marriages performed between July and November of 2008 will remain valid and recognized by the State of California. So in terms of equal rights, the Court feels same-sex marriage is justified. It also appears to validate an ex post facto concept by ruling that something that was legal when it took place cannot then be made illegal by a law or even a constitutional revision passed after the fact.

If those bringing suit against Prop 8 had based their argument on equal protection they might have gotten a favorable ruling. By instead focusing on the technical issue of whether Prop 8 was a sweeping or narrow change in the California Constitution they instead got a ruling on that narrow and technical issue.

In the long run, though, this may turn out for the benefit of the proponents of gay marriage. If it had been reimposed by court order after losing at the polls it would have sparked extreme anger among the opponents of same-sex marriage, who would have felt the will of the people was being subverted by "judicial activism." Such a development would have strongly energized the religious right and older traditionalists.

Instead, now the equal rights supporters are the ones with the cause and momentum on their side. Gay marriage was opposed by 41 points, 68% to 27% according to Gallup in 1996. In 2000 when Californians voted on Proposition 22, which defined marriage as only between one man and one woman, it passed by 22 points, 61% to 39%. The anti-gay marriage position had already yielded 19 points of its margin. Just seven years later that margin had shrunk by another 18 points, down to 4, as Proposition 8 passed in 2008 by just 52% to 48%.

Both Democratic Senator Feinstein and Republican Governor Schwarzenegger released statements Tuesday saying it was only a matter of time before California legalizes same-sex marriage by the will of the people. Given the trend since 1996 and exit polling that indicates under-30 voters opposed Prop 8 63-37%, these are clear signals that time is on the side of marriage equality for gays and lesbians. When it does come it will almost certainly be by the decision of the voters rather than the judges, and that will confer greater legitimacy to the public at large.

But that still should not, in this view, give the courts a pass for ducking tough questions. Constitutional rights are not at the whim of the voters. If it had been up to the voters alone many states would still be racially segregated to this day. For now, we will have a strange mixture in the Golden State. There are 18,000 same sex-couples with recognized marriages. But many thousands more who might wish to do likewise will not be allowed to. And what will happen when the first of these 18,000 files for divorce? In 2010 or 2012 the question will be on the ballot again. And sooner or later it is going to win.