First and second photos: Protesters in San Francisco Tuesday, where arrests began mid-day. Photo courtesy One Struggle One Fight. Third photo: Outside the California Supreme Court in San Francisco. Wockner News photo by Steve Silberman. Fourth photo: A couple talks with media while participating in an anti-Prop 8 protest May 26 in San Francisco. Photo by Joshua Klipp
In one of the most anticipated court decision in the past five years, the California Supreme Court Tuesday ruled that the state's anti-gay marriage constitutional amendment Proposition 8 was valid law, but that the 18,000-plus marriage certificates issues to gay couples prior to its passage last November remain valid.
"In sum, although Proposition 8 changes the state Constitution,"said the 6 to 1 majority, "...to provide that restricting the family designation of 'marriage' to opposite-sex couples only, and withholding that designation from same-sex couples, no longer violates the state Constitution, in all other respects same-sex couples retain the same substantive protections embodied in the state constitutional rights of privacy and due process as those accorded to opposite-sex couples..."
The result is what many had expected —the anti-gay initiative stands but those gay couples who married between May and November of last year would continue to have valid marriage licenses.
"Prop 8 was a sad, knee-jerk response to the sight of couples in love celebrating their happiness with family and friends," said Jennifer Pizer, head of the Marriage Project for Lambda Legal Defense and Education Fund. "It badly damaged the Constitution's equality guarantees. With today's deeply disappointing court decision, it is up to us as a caring, moral people to repair our constitution at the ballot box."
"It's a deeply disappointing to see the court fail to strike down Proposition 8 which was improperly adopted,"said Evan Wolfson, head of the national Freedom to Marry group and one of the first attorneys to litigate a gay marriage case. "We shouldn't be making the rights of any minority vulnerable to a casual majority vote."
But the majority opinion, written by Chief Justice Ronald George, said opponents of Proposition 8 "drastically" overstate the effect of the initiative.
"Proposition 8 does not eliminate the substantial substantive protections afforded to same-sex couples by the state constitutional rights of privacy and due process as interpreted in the majority opinion in the Marriage Cases," wrote George in the 135-page opinion. He was referring to the decision of the court last May, declaring that the refusal of the state to issue marriage licenses to same-sex couples violated the state's constitution at that time. George wrote that decision, too.
But Proposition 8, passed by voters last November, changed the constitution, adding 14 words: "Only marriage between a man and a woman is valid or recognized in California."
George said that, despite that amendment, "same-sex couples continue to enjoy the same substantive core benefits afforded by those state constitutional rights as those enjoyed by opposite-sex couples-- including the constitutional right to enter into an officially recognized and protected family relationship with the person of one's choice and to raise children in that family if the couple so chooses-- with the sole, albeit significant, exception that the designation of "marriage"is, by virtue of the new state constitutional provision, now reserved for opposite-sex couples. "
But many in the LGBT community see that as equivalent to treating gays as second-class citizens, as did the lone dissent from the seven-member bench's sole Democratic appointee, Carlos Moreno.
"Denying same-sex couples the right to call their relationships marriages treats them as 'second-class citizens'" wrote Moreno.
Equality California, one of the key groups fighting for equal rights in marriage in California, issued a statement on its website saying, of the decision, "Our worst fears have come to pass."
"The California Supreme Court just ruled that a slim majority of voters could eliminate the right of same-sex couples to marry," said the statement. "This unjust decision flies in the face of our constitution's promise of equal protection. "Although we are relieved that the Court did not forcibly divorce the estimated 18,000 couples who married before Prop 8 passed, our community and our allies will not allow this on-going discrimination to stand." The organization vowed to get a new initiative on the ballot in California to repeal Proposition 8.
The majority on the California Supreme Court said that "A retroactive application of the initiative would disrupt thousands of actions taken in reliance on" its original pro-marriage decision last year.
Plans by LGBT groups for either protests or celebrations were poised in almost 100 cities across California and the nation, including Boston, Chicago, Dallas, Lansing, and Washington, D.C. LGBT activists are also expected to picket outside the Beverly Hilton in Los Angeles Wednesday night during a speech by President Obama.
The key legal dispute before the court was whether Proposition 8 simply amended the state constitution or whether it significantly revised it. If the initiative only amended the constitution--as the majority agreed-- then the initiative would survive. If it revised the constitution, then it would have run afoul of other constitutional provisions, requiring that the issue receive two-thirds approval by the legislature before going to voters.
All six of the judges in the majority were Republican appointees.
© 2009 Keen News Service