Not entirely unexpected, but in a six-to-one decision, the California Supreme Court upheld the state’s ban on gay marriage, the Proposition 8 referendum voters approved last November. The court ruled that Prop. 8 “constitutes a permissible constitutional amendment (rather than an impermissible constitutional revision).”
Silver lining: the court declared that the 18,000 same-sex marriages conducted last summer, prior to the passage of the proposition, would remain legal and recognized. I think this presents an odd legal problem — how can 18,000 gay marriages be considered legal when the rest of California’s gays are legally forbidden from marriage?
Importantly, though the court upheld the ban on the use of the term “marriage” by same-sex coupes, it reaffirmed the fundamental constitutional rights of gay couples:
[T]he measure 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, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.
Indeed, the bulk of the court’s May 2008 ruling that originally legalized gay marriage — which emphasized “respect and dignity” — stands.
In a blistering dissenting opinion, Justice Carlos Moreno wrote that the decision "weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority." Moreno also rejected the majority's claim that banning full marriage rights was a "narrow" civil rights restriction for gay couples. Regardless how narrow the restriction, he argued, the ruling violates these couples' right to equal protection:
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; the passionate public debate over whether same-sex couples should be allowed to marry, even in a state that offers largely equivalent substantive rights through the alternative of domestic partnership, belies such a description. […]
But 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 that has pervaded the California Constitution since 1849. Promising equal treatment to some is fundamentally different from promising equal treatment to 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.
He's right, of course. But I suspect that in a few years, or one generation at the most, California will come around and overturn Prop 8.