On March 5, the California Supreme Court began its hearings for its decision on the constitutionality of Proposition 8, passed as a referendum by California voters, in November, 2008, affirming that marriage is to be defined as between a man and a woman. Proposition 8 was supported by 52% of the voters. Whatever the court decides, the quandary about same-sex marriages is not likely to go away.
In May 2008, the California Supreme Court, by a vote of 4-3, allowed gay marriages. In so doing, it voided Proposition 22, passed in 2000, which affirmed marriage was between a man and a woman. Proposition 22—which unlike Proposition 8 was not a constitutional amendment--had garnered a 62% affirmative vote. The court decision in that case (cf. In re Marriage) based its conclusion for allowing same-sex marriages on two premises. The first premise is that the right to marry is one of the fundamental constitutional rights. As the majority opinion put it: “The constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the legislature or by the electorate through the statutory initiative process.”
The second premise was that “an individual’s sexual orientation—like a person’s race or gender—does not constitute a legitimate basis upon which to deny or withhold legal rights.” Indeed, given past discriminations and powerlessness of a minority, any discrimination is “ suspect” and must be subject to “strict scrutiny,” especially if a statute impinges upon a fundamental right. Only a compelling state interest could allow differential treatment. The majority held that, notwithstanding California law recognizing domestic partnerships, to which accrue all of the substantive rights and responsibilities of “spouses,” the refusal to grant marriage involved an infringement on the equal respect and dignity of same-sex couples under the law. Domestic partnerships, short in history and vague as to their meaning to most of the populace, did not confer on same-sex partners and their children (same sex couples in California have 70,000 children) equal dignity and respect under the law.
In her dissent, Justice Carol Corrigan (who indicated she is actually in favor of same-sex marriage) argued that the court’s judicial activism on the question was unjustified. She dissented from the argument that the question demanded “strict scrutiny,” since domestic partnerships do provide fundamentally equal, if separate, status for same-sex couples. She noted that were this not so, she would be more open to a judicial look at civil unions versus marriages. But Corrigan claimed that such a sweeping reform “should go forward in the legislative sphere and in society at large. When ideas are imposed, opposition hardens and progress may be hampered.”
The court is now being asked to adjudicate on four related questions. The first issue is whether Proposition 8 was a simple amendment to the Constitution (which only demands a simple majority of the voters) or a revision (which demands both legislative passage and, then, a majority of voters to approve). The California legislature would not, at present, pass anything like Proposition 8. Indeed, recently, a majority of both houses voted a resolution attacking Proposition 8 and claiming it was a revision, not an amendment.
A revision differs from an amendment in have a sweeping impact (usually about a question of governance or separation of powers). In ten cases which have come before the court to rescind an initiative, because it was really a revision rather than an amendment and, therefore, suspect as procedure, the court has only accepted the argument three times. The court refused to take up a challenge to Proposition 8 before it was approved in the election. The challenge had claimed it was procedurally suspect and should be voided, before the election, since it should be seen as a revision. Historically, the court has mainly seen revisions as attacking the fundamental structures of government (whose main purpose is to safeguard liberty). Theresa Steward, the lawyer for the city of San Francisco, succinctly argued on this ground:” If we protect the structures of government but leave all liberties to simple majority vote, then we are safeguarding the moat while allowing the castle to burn down” The distinction between a revision and an amendment in California law is murky enough to allow the court to declare it a revision. Few, however, think the court will declare Proposition 8 a revision. That would have been its easiest recourse.
The hearings held in March led most pundits to predict that the court would let Proposition 8 stand in the Constitution but be chary about retroactively invalidating the 18,000 same-sex marriages which occurred in 2008. Even conservative Justice Baxter (who opposed In Re Marriage) noted that those who had married had “received the right by the highest court in the state.” Of course, letting some same-sex marriages stand, while not allowing others, does raise a significant substantive question about equality under the law. A similar objection could be made to a New York law which recognizes same-sex marriages from other jurisdictions but disallows same-sex marriages to be performed in New York. On what basis this inequality before the law?
The Attorney General, Edmund Brown Jr., has claimed that the real question is one of inalienable rights and whether a legislature or referendum can infringe them. The court did not seem, in the hearings, open to this line of argument, although, paradoxically, in a sense, that was the argument of the majority in In re Marriage. Disturbing to me in the hearings was some easy talk about the sovereign right of the electorate, as if liberties could be subject to majority vote. Kenneth Starr, the lawyer for the proponents of Proposition 8, seemed to think a referendum could deny free speech or, perhaps, take away domestic partnership. Hopefully, the court’s ruling will clarify this issue. It is clear to me that the ease of amending the California Constitution (by a simple majority vote) is scandalous. For that reason I voted against Proposition 8, as I vote against all referenda to amend the Constitution by a simple majority.
To me, the most disturbing line of questioning by Justice Ming Chin (who dissented from In re Marriage) points to one way out of the conundrum. Chin asked if it would be fair to uphold Proposition 8 (as the sovereign will of the electorate) but require the state to replace the term marriage by the term civil union for all relationships. The In re Marriage majority had already seeded this line of questioning. In arguing for equality under the law for same-sex couples, the majority said that its options, in protecting equality before the law, were either to allow same sex couples to marry or to change the title for all “ marriages” to something like civil unions. It stated that the first choice was the less drastic.
I can not, personally, foresee any worse decision than this robbing of the term marriage. It has a rich resonance about commitment, even in adversities, of love, care. It has a kind of history, on which the state can rely, that some new term could never easily garner. Nor is marriage, intrinsically, a religious term. If I had to choose between granting same-sex couples the right to marry or deciding to deny the term marriage to all relationships in the name of equality, I would, for the sake of societal welfare, clearly choose the first option. Finally, whatever the court decides, a number of voters in California are poised, if necessary, to go back to the referendum process to vote out Proposition 8.
John Coleman, S.J.