More Details on the Supreme Court's Opinion to Uphold Prop. 8

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."

Submitted by Editor on Tue, 05/26/2009 - 4:08pm.

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