Sunday, May 31, 2009

The Proposition 8 Ruling: What It Means

What did the court decide?
The court ruled against opponents of Proposition 8 and upheld traditional marriage. The key issue before the court was whether Proposition 8 was an amendment or a revision to the state constitution.

A revision is a fundamental alteration of California's governmental structure. A revision requires a 2/3 approval by the legislature before heading to voters. The court agreed with Proposition 8 supporters that the ballot measure was a valid amendment, not a revision. The simple 14-word insertion of the traditional decision of marriage does not fundamentally change the structure of government.

This ruling was a victory for the democratic process and the people's ability to change our governing documents. While Proposition 8 was upheld, it was also subverted by the ruling. In recognizing the 18,000 same-sex unions performed last year, the court undercut the constitution, which clearly states that only marriage between a man and a woman is valid or recognized in California.

What about the same-sex marriages performed last summer?

Last May the California Supreme Court overturned Proposition 22, declaring it unconstitutional. Since Proposition 22 was not placed in the constitution, but simply in state law, the court contended that it violated the state's ultimate law, the constitution. Six months later, voters approved Proposition 8, which placed the true definition of marriage in the state constitution, thus superseding the court's ruling. In that six month window, an estimated 18,000 same-sex unions were performed in the state.

The court placed itself in the untenable position of upholding the people's ability to defend traditional marriage and extending marriage rights to same-sex couples. In the end, the court reluctantly agreed Proposition 8 was a valid constitutional amendment, but it held to its social engineering by validating the marriages performed last summer.

The court ruled that Proposition 8 did not contain a "retroactivity provision" and therefore any marriages performed before it took effect were valid. The ruling held that voters did not intend to invalidate existing same-sex marriages, and neither Proposition 8's language nor any voter guide information would lead voters to believe that existing same-sex marriages would be invalidated should Proposition 8 pass. This is an attempt by the court to find a legal loophole in order to placate those they wronged last year by impatiently and imprudently declaring same-sex marriage legal before voters had their say on Proposition 8.

Will same-sex marriages outside of California be recognized?

In the last footnote of the majority opinion, the court indicates it is open to hearing a case on whether same-sex marriages performed outside the state during the six-month window last summer may also be recognized in California. It is doubtful that such marriages would be recognized, especially not until such a legal challenge is brought forward. However, the court does seem to invite such a challenge, and based on their illogical justification for recognizing the 18,000 existing same-sex unions, justices seem amenable to the idea of recognizing out-of-state unions.

Does this mean the fight over marriage is over?
Not at all. Even before the ruling was handed by the court, homosexual activists were organizing and planning their next steps. Already, there is a movement to place a repeal of Proposition 8 on the ballot in 2010. Rallies, protests and demonstrations are scheduled all across the state as opponents of Proposition 8 express their anger.
The day after the ruling was handed down, two lawyers announced they had filed a federal challenge to Proposition 8. Former Solicitor General (under President George W. Bush) Ted Olson and David Boies, who were opponents in the historic Bush v. Gore case of 2000, jointly filed the lawsuit. The suit alleges Proposition 8 violates the United States Constitution's Fourteenth Amendment guarantees of equal protection and due process. On behalf of an Alameda lesbian couple and Los Angeles gay couple, the suit requests an immediate injunction to stop the enforcement of Proposition 8.

There does seem to be some division amongst homosexual groups, as several have denounced the lawsuit, preferring instead to try the issue at the ballot box again. Homosexual advocacy organization Equality California is already laying the groundwork for a statewide ballot initiative to make same-sex marriage legal. If it qualifies, such a measure could appear on the 2010 or 2012 ballot.

We must remain vigilant because the battle for marriage has just begun.

Capital Resource Institute 2009

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