Dispatches from the Creation Wars

As I’m sure you’ve heard by now, the California Supreme Court has upheld the constitutionality of Prop 8, which banned same-sex marriage in that state.

The California Supreme Court today upheld Proposition 8’s ban on same-sex marriage but also ruled that gay couples who wed before the election will continue to be married under state law.

The decision virtually ensures another fight at the ballot box over marriage rights for gays. Gay rights activists say they may ask voters to repeal the marriage ban as early as next year, and opponents have pledged to fight any such effort. Proposition 8 passed with 52% of the vote.


And while I don’t like the outcome of the case, as a legal matter it was pretty cut and dry. The court had little choice but to uphold the law because the legal challenge was pretty weak. The court did not rule on whether the substance of the referendum violated the state constitution; indeed they could not rule on that question because Prop 8 amended the constitution.

Instead, they were asked to invalidate last year’s referendum based on a legal technicality. The argument was that the referendum was not a mere constitutional amendment, which can be done through referendum, but a constitutional revision, which requires a vote of the legislature as well. We had a similar case here in Michigan last year where the Michigan Supreme Court invalidated a referendum (before it was on the ballot, rather than after it was passed) because it changed so many different provisions of the state constitution that it amounted to a revision rather than an amendment.

But the case in California was always much weaker than the case in Michigan. In Michigan, the referendum really did change a whole range of separate provisions in the constitution – the number of courts and judges, how pay is determined for state officials, how districts were drawn up and much more. But in California, Prop 8 really only changed one thing.

The plaintiffs tried to argue that Prop 8 changed a number of provisions in the state constitution, including the right to privacy, equal protection and due process. But in fact, it only changed how those provisions might be interpreted in the specific case of same-sex marriage. That is quite different from changing several structural provisions in a constitution.

The same California Supreme Court that voted a few years ago that the state had to allow same-sex marriage under those clauses just voted 6-1 that the referendum that overturned their ruling is constitutional. That should make it pretty clear that the judges were just following the law rather than making sure that what they wanted to happen did happen. As a legal question, this was really a pretty easy choice.

The solution here lies in the political realm, where a new referendum needs to be put on the ballot to repeal Prop 8. That will certainly happen, and the sooner the better. And I predict that it will win. Not only that, I predict that it will end up backfiring on those who pushed Prop 8 in the first place.