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A Time to Rally: Proposition 8 Upheld By CA Supreme Court

By L. K. Regan

In a disappointingly mixed ruling today, the California Supreme Court has affirmed the legality of the state's voter-approved ban on gay marriage, but has also ruled that the estimated 18,000 same-sex couples who married before the law took effect will retain their legally wedded status.

Gay rights activists and civil rights groups brought suit against Proposition 8, a ban on gay marriage approved by ballot measure in November of 2008, on the grounds that the law, in amending the state constitution to limit marriage to a union between a man and a woman, went beyond the limits of a mere amendment to the constitution. In effect, they argued, Prop 8 struck at the central provisions of the state constitution, including the equal protection clause, and as such was a revision of the document, not an amendment to it. A revision would require approval from the state legislature, and could not be instituted simply by popular vote.

In a 6 - 1 ruling, the court held that the existence of civil unions in the state meant that, in the words of majority opinion author Chief Justice Ronald George, same-sex couples may still "choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage." In the new law, "it is only the designation of marriage—albeit significant—that has been removed by this initiative measure." This places, the court decided, a "limited effect of Proposition 8 upon the preexisting state constitutional right of privacy and due process and upon the guarantee of equal protection of the laws." Prop 8, Justice George wrote, simply “carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term ‘marriage’ for the union of opposite-sex couples as a matter of state constitutional law.”

The LGBT community is left reeling, and demanding to know by what logic constitutional rights come with exceptions. Shannon Minter, the legal director for the National Center for Lesbian Rights and one of the lawyers who argued the current case before the court, said that the court's decision is “a terrible blow to the thousands of gay and lesbian Californians who woke up this morning hoping and praying their status as equal citizens of this state would be restored.” In the face of that disappointment, activists statewide are looking to the inspirational examples of Iowa and New England for hope for the future, and planning a return to the ballot box to join the growing tide of popular opinion in favor of gay marriage. When that return will happen will depend on the converging efforts of multiple activist groups. In a press release, Equality California said, "Despite today’s setback, Equality California is committed to restoring the freedom to marry. 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. However, we will make the final decision on when to return in collaboration with our coalition partners and allies throughout the state."

As to the nearly 18,000 gay couples married in California in the brief window of legal marriages, they enjoy a special status, at least for the moment. The court's decision states: "Finally, we consider whether Proposition 8 affects the validity of the marriages of same-sex couples that were performed prior to the adoption of Proposition 8. Applying well-established legal principles pertinent to the question whether a constitutional provision should be interpreted to apply prospectively or retroactively, we conclude that the new section cannot properly be interpreted to apply retroactively. Accordingly, the marriages of same-sex couples performed prior to the effective date of Proposition 8 remain valid and must continue to be recognized in this state." Congratulations to those lucky couples—we hope that it will not be long until others may join their ranks.