The California Supreme Court this week upheld the ballot initiative that banned same-sex marriage in the state, but also validated the thousands of same-sex marriages performed in the state when such unions were legal.
The court released its long-awaited ruling May 26, which was met by a sea of “shame on you” chants from the nearly 1,000 LGBT and ally supporters gathered outside the Supreme Court building in San Francisco.
Although the court ruled in a 4-3 decision last May that denying same-sex couples access to marriage violated the state constitution’s equal-protection, due-process and privacy clauses, this week’s ruling noted that the constitution “explicitly recognizes the right of the people to amend their state constitution through the initiative process.”
Following last year’s court ruling that overturned the state’s ban on same-sex marriage, marriage-equality opponents spearheaded the ballot initiative to limit the definition of marriage in the constitution as being between one man and one woman. Prop. 8, one of the most expensive and contentious ballot measures ever put forth in the country, passed with a 52-percent margin in the November election.
This week’s ruling stemmed from several lawsuits filed by numerous same-sex couples and marriage-equality organizations, as well as the cities of San Francisco and Los Angeles and the county of Santa Clara, after the passage of Prop. 8.
The 6-1 decision, written by Chief Justice Ronald George, found that Prop. 8 was a proper amendment to the constitution, not a revision — a fundamental change to the constitution that would have required approval by the state legislature being posed to the public — as charged by opponents of the measure.
The opinion noted that Prop. 8 “does not by any means ‘repeal’ or ‘strip’ gay individuals or same-sex couples of the very significant substantive protections afforded by the state equal-protection clause either with regard to the fundamental rights of privacy and due process or in any other area, with the sole exception of access to the designation of ‘marriage’ to describe their relationship,” allowing for the measure to be narrow enough to be considered an amendment, not a revision.
Justice Carlos Moreno, the only Democrat on the bench, was also the only dissenter, arguing the measure should have been considered a revision. He held that constitutional changes such as Prop. 8 that “substantially alter the substance and integrity of the state constitution as a document of independent force and effect” should be treated as revisions.
Moreno continued that the ruling “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.”
All justices agreed, however, that the more than 18,000 same-sex marriages that took place in the state between May and November 2008 should continue to be recognized.
Stephen Carlino and Dennis Fee, owners of local Tavern on Camac, were married in California in October, and Carlino said that while he’s happy his marriage will still be recognized by law, he was frustrated with the court’s decision.
“I’m very, very disappointed that they would allow a small majority of people to decide the fate of this large minority,” Carlino said. “This is a minority that now has less rights than the majority; they’ve set up almost a second class of citizens.”
LGBT leaders across the country appeared determined this week to bring the issue back to the voters.
Marc Solomon, Equality California marriage director, said that while his agency was eager to work with other marriage-equality supporters to determine if it would be more effective to pursue a ballot initiative to reverse Prop. 8 in 2010 or 2012, Equality California is leaning toward the sooner, the better.
“We believe, as do the majority of our members, that 2010 is the best time to return to the ballot to repeal Prop. 8. We must take full advantage of the momentum and commitment people now have to do the work required on the ground,” Solomon said. “We look forward to working with our coalition partners to make a final decision on when to return to the ballot and to putting together one powerful, winning campaign program to ensure that committed, same-sex couples are once again able to enjoy the dignity and protections that marriage provides.”
According to the California secretary of state, marriage-equality proponents would have until Aug. 17 to collect the nearly 700,000 signatures needed to have the repeal question qualify for the 2010 ballot.
LGBT supporters also intend to take the fight to the federal courts. Former U.S. Solicitor Gen. Theodore B. Olson and David Boies — two attorneys who argued on opposing sides of the Bush/Gore 2000 presidential election case — announced Tuesday that they will represent two same-sex couples who were denied a marriage license after the passage of Prop. 8. The suit, which calls for an immediate injunction of the ballot measure, will be filed in U.S. District Court in the state.
Marriage-equality opponents also took to the streets this week.
Tens of thousands of LGBT and ally supporters held protests and rallies in cities throughout the country, a coordinated effort fueled by the site DayofDecision.org, founded by Robin Tyler, one of the plaintiffs in the case, which posted planned protests in 108 cities.
A few hours after the decision was published, San Francisco police arrested about 175 LGBT and ally protesters who were blocking an intersection in the city. Several thousands supporters turned out that night for a scheduled march from City Hall to the Castro district, and more than 5,000 reportedly gathered in San Diego and 1,000 in both Los Angeles and New York City.
While appearing on “The Tonight Show” with Jay Leno on Tuesday, California Gov. Arnold Schwarzenegger (R) expressed confidence that the state’s LGBT community would eventually overturn Prop. 8.
“I think that this is not over, the decision, because I think they’re going to come back,” Schwarzenegger said. “In a year or two, they will be back again with another initiative trying to get it. You know, eventually it’s going to be overturned.”