In 1964, Stanley Kubrick produced the Cold War film Dr. Strangelove, or “How I Learned to Stop Worrying and Love the Bomb.”  By upholding Proposition 8, the California Supreme Court has learned to stop worrying and love the initiative process.  It’s an apt analogy, because today’s decision leaves an unchecked power of the voters to strike a “bomb” through our basic Constitutional protections.  Not only did the Court minimize Prop 8’s effect on the right to marry, using logic that contradicted last year’s decision on the same subject.  It set up a dubious distinction between “amendments” and “revisions” to the state Constitution, which will allow virtually any ballot measure to pass as a mere “amendment.”  Without adequate safeguards that a “revision” was meant to place, equal protection is no longer sacred – because the power of the ballot is supreme.  At the same time, the Court ruled that the 18,000 same-sex couples who legally wed last year are still married – because to invalidate these licenses would be an undue violation of due process and property rights.  While that was a wise decision, it remains a mystery why such a right is more important than equal protection.

California is famous for its wacky initiative process – where the voters get to decide on a myriad of complicated matters, much of which could arguably be better left to elected leaders.  But the grounds for overturning Prop 8 was not about the 48% of voters who disagreed with taking marriage rights away from same-sex couples.  It was that some rights are too important to be stricken by mob rule, and the state Supreme Court’s job is to protect these constitutional protections – even if a bare majority of the electorate (without safeguards) wants to change the Constitution.  The Court has declared “open season” on the rights of all minorities, setting a dangerous precedent for future elections.  Here’s why …

Court Contradicts Itself on the Term “Marriage”

In May 2008, the state Supreme Court ruled that same-sex couples have a constitutional right to marry – as a natural extension of the right to privacy, due process and the right to raise a family.  Now, the same Court says Prop 8 is not unconstitutional because it carves out a “narrow exception” to these rights.  It only changes the definition of “marriage,” not the rights or benefits that committed same-sex couples enjoy with domestic partnership – nor does it alter the right to raise a family.

This opinion clearly contradicts last year’s ruling – where the Court said the very term “marriage” was a necessary component, so that same-sex couples can have their family relationships accorded the “same dignity, respect and stature of others.”  What the Court effectively said today is that gay people didn’t really lose anything substantive with the passage of Prop 8.  But if true, they also did not gain anything important from last year’s Court decision.  Back then, the Court made it clear it was a crucial right.

The Unchecked Power of Voters to Change the Constitution

Granted, the Court will say Prop 8 changed the state Constitution – and thus last year’s interpretation is irrelevant and obsolete.  But while the people have “sovereign power” and can “alter or reform” the Constitution as they see fit, our framework does not allow them to make all changes to the state Constitution.  A minimum threshold of voters can collect signatures to put an “amendment” on the ballot, but only the state legislature – or a constitutional convention – can initiate a major “revision.”  And the Court failed to understand both the history and basic structure of this distinction.

Before 1911, California did not have an initiative process – and all “amendments” had to come from the state legislature.  Every state that distinguishes between “amendments” and “revisions” (and California based its constitution off New York) has a common thread – none of them allow the people alone to make the most profound changes.  An “amendment” to the California Constitution is there to “improve” the existing framework, but a “revision” would substantially alter its “substance and integrity.”  Even states that passed equivalents of Prop 8 only generally did so after the legislature put it on the ballot.

The Court said Prop 8 was not a revision because it “simply changes the substantive content of … one specific subject area – the … designation of ‘marriage.'”  It did not alter the “scope” of the Constitution, and only has a “limited effect on the fundamental rights of privacy, due process and equal protection.”  The Court even implied that only changes affecting a wide spectrum of our Constitution are protected from the whims of the public opinion – and explicitly said that a revision is not anything that “abrogates a foundational constitutional principle of law.”  Based upon the Court’s narrow definition, it is hard to see how any change to the Constitution would qualify as a “revision.”

Open Season on the Rights of Minorities

Prop 8 is a major change to the Constitution that cannot just be left to the voters, because it deprives equal protection to a specific minority group.  But the Court quietly dismissed this concern, because it was not the first time in California history that a majority took rights away from a minority.  In 1964, the voters passed a measure allowing homeowners to racially discriminate when selling their property – which was struck down in federal court.  In 1996, California passed Prop 209 to repeal affirmative action.  And in 1894, the state passed a measure to deprive voting rights for anyone who didn’t speak English.

How did the Court conclude that none of these ballot measures were revisions?  At the time, no one sued to have them repealed for that particular reason – a dubious basis to conclude that they were therefore proper “amendments.”  According to this Court, it is acceptable for the voters – without any scrutiny by the legislature or a constitutional convention – to amend the Constitution to repeal basic rights from a minority group.  

This creates a dangerous precedent. What if, after September 11th, California had passed an amendment requiring Muslims to travel with passes?  The Court dismissed such concerns as a “dubious factual premise of a highly unrealistic scenario of future events.”

But Property Rights are Protected …

If there is one bright spot from today’s Court decision, the 18,000 same-sex couples who wed before November 4th are still legally married – despite efforts by Kenneth Starr to convince the Court otherwise.  California law presumes that ballot measures are not retroactive, without clear and unambiguous proof that it was the voters’ intent.  But the Court also pointed out that these couples had acquired “vested property rights as lawfully married spouses,” and to suddenly take their licenses away would be a blatant violation of due process.

It is unclear why the Court believes the “will of the people” is more important than the equal protection rights of minorities, but not the due process of property owners.  If we are to take the Court’s logic on what constitutes a valid “amendment” and uphold the validity of Prop 8, anything that doesn’t obviously change the “scope” of the California Constitution can be enacted by the voters – without any restrictions.  By that rationale, due process would take a back seat – and the 18,000 marriage licenses would be null and void.

EDITOR’S NOTE: Paul Hogarth was a law school intern at Equality California during the summer of 2005, and got his J.D. from Golden Gate University in 2006. He is an attorney licensed to practice law in California.  He is the Managing Editor of Beyond Chron, San Francisco’s Alternative Online Daily, where this piece was first published.

Calitics can be very 30,000 feet. We look broadly at the policy issues that face Californians, point out what’s good, what’s bad, and what’s stupid.  On occasion it turns personal, in that one member of our community or another is affected by the decisions made in Sacramento and throughout California politics. I’ve seen people struggle with EDD, and people get laid off and furloughed. These are all very real and poignant to me.

But the decision to uphold Proposition 8 deals a devastating blow to so many Californians, and it does for me. Marriage equality is really a whole lot less about any one specific marriage, my own or any other, than about the fact that the state draws a line between a marriage between those of the same gender and an “opposite marriage” as Carrie Prejean likes to say. In a very real way, the Supreme Court said today that second-class citizenship is sufficient for a suspect class.  

More broadly, this decision strikes at the heart of California’s equal protection clause. It is far reaching in that it allows the people of California to vote on people they do or do not like.  It turns our bedraggled system of initiatives into a high school popularity contest, where the cool kids get to do as they like. Or, as Justice Moreno summed it up:

The rule the majority crafts today not only allows same-sex couples to be stripped of the right to marry that this court recognized in the Marriage Cases, it places at risk the state constitutional rights of all disfavored minorities.  It weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority. (Justice Moreno’s dissent, at 2)

Yes, this does affect me personally. Sure, sure, my marriage is still valid, but frankly so what? My marriage now carries an asterisk. A footnote, an exception that only mocks those who bear it. What a prize, I get to keep using the word “marriage” but I’m simultaneoulsy slapped across the face.

Ultimately, this too shall pass. At this point, it is merely a question of when Prop 8 will be repealed.  It is a question of campaign strategy, and of polling, and of money. But never doubt that this decision was an anachronism before the ink was dry. It is a stain upon our legal heritage, but a stain that can be smudged, with enough hard work, into something that we can point to as a moment of transformation through adversity.  

Because now it is up to us to turn that stain upon our legal system into a piece of art worthy of the masters at the ballot. It is not enough to merely state that we oppose Prop 8. We must do the very tough work to defeat the measure. We must build a campaign structure that combines the energy of the grassroots support for marriage equality, but also the best lessons from campaigns in the past. We must have a structure that is responsive, yet nimble. Our failures in the past must be a lesson.

But, this is the last blow of a dying effort.  We’ve tasted marriage equality here. We have it elsewhere. As Eva Patterson states in the video, life will go on. We will have to work harder and smarter in the future, but the days of such nonsense will get rarer and rarer. Because some truths really are self-evident:

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. (Justice Moreno’s dissent, at 6-7)

The California Supreme Court has upheld Proposition 8, a ballot initiative that denies a specified group of our citizens the same rights as other Californians are allowed.

It is unfortunate that instead of being in the forefront of civil and human rights California is now in the position of denying a core human right to a selected group.

We are pleased that the Court allowed 18,000 couples whose decision to make a life commitment to each other to keep that right, but this apparently one-time-offer is no longer available to others who wish to have the same rights as all other Californians.  This has happened because of a misguided and deceptively misleading religiously-based ballot initiative that was financed by big money from out of state and the intolerance of other well-funded organizations.

This is not over.  The next step is to bring the matter back to the people. This time we need to dispel the fears and hatred that drove Prop. 8 by making it clear that it is a fundamental issue of human dignity for people to have the right to choose a life partner.

We at Speak Out California look forward to participating in that effort and in finally allowing all people the right to marry in the state of California, as many other states have now recognized as a fundamental right and a matter of simple human decency.

Please click here to join our ranks at Speak Out California, and please join the Courage Campaign’s Fearless efforts to organize the fight to bring equal rights to all Californians, and visit http://www.couragecampaign.org/1million.

In addition, please join the Meet in the Middle for Equality rally in Fresno, Saturday May 30, 1:00pm at City Hall.

At Speak Out California we also present the Courage Campaign “Fidelity” video and are updating with statements by California and national leaders as they come in through the day.

Here’s the full decision, as the court’s site can be a bit janky :

California Supreme Court ruling on Proposition 8 –

In the spirit of helpfulness, here is a link to the Supreme Court’s Prop 8 High Profile Cases page. You’ll find the decision posted there in just under an hour.

UPDATE by Dave…I guess we can all go home, because Tommy Christopher already posted his story on the ruling at 8am, two hours before the opinion is released. (h/t msblucow)

UPDATE by Dave: The egg stays off Tommy Christopher’s face, as the Court upholds Prop. 8 by a 6-1 count, with Judge Moreno the only dissenting vote.  The judges unanimously uphold the 18,000 existing marriages.

UPDATE by Robert: The decision is about as bad as it can get – the logic used to uphold Prop 8 is everything Ken Starr hoped it would be. Two key excerpts:

Contrary to petitioners’ assertion,

Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right of privacy and due process that was analyzed in the majority opinion in the Marriage Cases – that is, the constitutional right of same-sex couples to “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”  (Marriage Cases, supra, 43 Cal.4th at p. 829).  Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion.  Instead, the 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.

And the clear embrace of the Starr Doctrine:

Neither the language of the relevant constitutional provisions, nor our past cases, support the proposition that any of these rights is totally exempt from modification by a constitutional amendment adopted by a majority of the voters through the initiative process.

To the CA Supreme Court, voters can do whatever the fuck they want to via the initiative process.

CA is officially broken.

UPDATE by Dave: State Senator Mark Leno, who wrote the two gay marriage bills passed by the legislature and vetoed by Arnold Schwarzenegger, has released a statement.  So has Sen. Feinstein, CDP Chair John Burton, House Speaker Pelosi and Lt. Governor Garamendi.  I’ll catalog them on the flip:

UPDATE by Brian:I’ll post videos from SF City Attorney Dennis Herrera’s press conference as soon as I can upload them.

Sen. Leno:

“Today’s decision is extremely disappointing for California and hurts thousands of caring couples who wish to make lifelong commitments to one another through marriage. Let today’s decision be a rallying cry for all Californians who believe in equality and fairness, and encourage thousands more to stand up and fight the pervasive injustices LGBT people face in our community and our nation.”

“The issue before this court was much greater than marriage equality. The question asked of our justices goes to the core of our society. Can a majority vote undermine a foundation stone of our constitutional democracy, equal protection under the law? Today our highest court ruled that minorities do not matter.”

“Through our disappointment, we will still find hope and encouragement, including the 18,000 couples whose marriages in California remain secure and protected today. Through our sadness, our resolve to fight for justice and equality only grows stronger. Love is an unstoppable force, and equality is right around the corner.”

Speaker Pelosi:

Today’s ruling by the Supreme Court in support of Proposition 8 is deeply disappointing because this ballot initiative takes away individual rights.

I have long fought for equality for all of California’s families and will strongly support efforts to restore marriage equality in California, so it can join the ranks of states such as Iowa and Vermont.

Lt. Gov. Garamendi:

Today we lost an important battle, but on this disappointing day, it’s worth remembering that the final outcome of this struggle has already been determined. Time is on our side, and Californians will one day soon repeal Proposition 8. Patti and I have been married for 43 years, and we stand shoulder-to-shoulder with the LGBT community and their allies as they work to convince the electorate that all Californians, regardless of sexual orientation, deserve access to marriage and equality. While we will always face roadblocks, our society journeys down a path of increased equality under the law.

Sen. Feinstein:

I know today’s decision is a tremendous disappointment for many people. But I also know that the opinions of Californians are changing on this issue, and I believe that equal marriage rights will one day be the law in this state. This is already the case in Connecticut, Iowa, Maine, Massachusetts and Vermont. So, I believe this issue will come before the voters again, and I am very hopeful that the result will be different next time.

Today’s State Supreme Court ruling also declares that the 18,000 same-sex marriages that have already taken place in California are valid, and I believe these marriages will allow people to see for themselves that marriage equality is a step forward for California and not a step back.

Chairman Burton:

Today’s decision, while heartbreaking, doesn’t end the historic struggle for marriage equality. It renews our dedication to making sure all California families can again enjoy the dignity, commitment and responsibility of marriage.

I commend the California Supreme Court for validating the rights of the 18,000 lesbian and gay couples who married last year before Proposition 8 passed.  These couples and their children will continue to enjoy the full security and legal protection of marriage.    

Within the next few years, I know California will restore legal, civil marriages for gay and lesbian couples.  The California Democratic Party will play a leading role in ending marriage discrimination in California and I look forward to the day when that happens.

( – promoted by Be_Devine)

UPDATE by Brian: You can find the decision here if the court's site isn't working for you.  

Building off the earlier open thread – In a 6-1 decision, the California Supreme Court upheld the validity of Prop 8. It held that a bare majority of California's voters has the right to single out an unpopular group and strip them of fundamental rights.

The only justice on the right side of history is Justice Moreno.

The Court held that a constitutional revision occurs only when it makes “far reaching changes in the nature of our basic governmental plan.”  Anything else is an amendment an can be passed by a bare majority.  The court held that the effect of Prop 8 is “only” one of nomenclature, and thus it does not make any changes to the nature of our government plan. 

Justice Werdegar was the only justice in the majority who is intellectually honest enough to call a spade a spade.  She didn't hide behind the majority's false argument that California's law on revision/amendment distinction has always supported the decision to uphold Prop 8.  Instead, she wrote her own concurring opinion specifically to point out what the majority hides: that the California Supreme Court had to make new law in order to reach its result of upholding Prop 8:

until today the court has gone only so far as to say that “a qualitative revision includes one that involves a change in the basic plan of California government, i.e., a change in its fundamental structure or the foundational powers of its branches.” (Legislature v. Eu, supra, at p. 509, italics added.) Today, the majority changes “includes” to “is,” thus foreclosing other possibilities.

* * *

The history of our California Constitution belies any suggestion that the drafters envisioned or would have approved a rule, such as that announced today, that affords governmental structure and organization more protection from casual amendment than civil liberties.

This is judicial activism at its worst.  Today, the Supreme Court significantly narrowed the definition of what is a “revision” that has been California law since the 1894 case of Livermore v. Waite. They invented a new definition only because it would suit the result that they wanted.  And the result that the Court wanted so much that they were willing to create new law is to strip a previously protected minority of its fundamental civil rights.

Today is a sad, sad day in California's history.

UPDATE: I’ve heard some more reliable rumors confirming what I wrote earlier about a Thursday decision. What I wrote earlier remains: be prepared and ready to work hard no matter what the decision.

Sure today is Election Day in the special election, but that’s not the only thing going on. Way back on March 5, the CA supreme heard oral arguments in the consolidated cases regarding Proposition 8.  That gives the court only until the first week of June to deliver their opinion in the case, as their is a rule requiring the decision within 90 days of the oral argument.  The Court gives one business day of notice before they release their decisions, which are generally released on Mondays and Thursdays.

  Thus, the so-called “Decision Day” is nearly upon us. There is speculation that it will be this Thursday, and if not it will likely be next week.  Time is just running out. Flip it for more…

No matter how the decision comes down, we must be prepared. First, go to DayOfDecision.com to find where your local “Decision Day” Rally/Protest will be.  And on the Saturday following the decision, consider coming to the “Meet in the Middle for Equality” event in Fresno. There will be a rally there, ending with some precinct walking in support of equality.

The thing is that either way, we will have to fight at the ballot box. Either by repealing Prop 8, or by supporting a courageous decision and the justices who stood for equality. That will take the hard work of grassroots activism, walking precincts, making phone calls, and getting out to organize in ways that just didn’t happen in the Prop 8 campaign.

That will also take money in order to make things happen online and off.  The Calitics CaliPAC not only gave money to the official campaign (umm…whoops), but we also arranged our own actions, such as the Fast4Equality website. The Calitics ActBlue Page raised over $50,000 for the No on Prop 8 campaign. And we already are working on ideas on how to not only join the coalition fighting Prop 8, but to get out in front with our own activities. If you’d like to help the CaliPAC’s efforts to fight Prop 8, consider dropping a dime or two on the Calitics ActBlue Page.

While you weren’t paying attention, the LA Times got word of the Supreme Court decision on Prop 8. No, they don’t actually have any word from the court, but “some people are saying”:

The California Supreme Court is expected to uphold Proposition 8, November’s ballot measure banning same-sex marriage, with a decision coming in the next few weeks.(LAT 5/7/09)

Oh, well, if some people are saying, then it must be true.

The article goes on to talk about the broad-based, grassroots movement for repeal of Prop 8. Throughout the state, you have what we never had in the run-up to Prop 8, a true neighbor to neighbor outreach program.  We have more field efforts now, before there is even a measure filed with the AG’s office, than we ever did during the “campaign.” From established Progressive and LGBT organizations to brand new grassroots teams, this thing is bubbling up.  Just like Jaws: The Revenge, this time it’s personal, because also like Jaws: The Revenge, Prop 8 was a horrible movie.

But, this is still the first time that progressives have ever worked to put an affirmative measure before the people. The Right’s GOTV “marriage protection” measure Prop 22 got well over 60% of the vote, yet Prop 8 just barely squeaked by.  The tide is turning. But of course, the Right wants to freeze time right there:

“There’s no doubt the other side is going to try to make great hay out of Iowa and Maine . . . but none of those places are California. And California voters have now twice voted on this,” he said. “What part of ‘No’ don’t they understand?”

Well, this is just rich, coming from California’s Social Right. How many times has parental notification gone down now? Let’s see, there was Prop 73, then Prop 85, and then Prop 4. So, that would be 3, or, to be exact, 3 more times than progressives have tried to put marriage equality on the ballot.  Really, Mr. Schubert? You are going to use that line and expect to get away with brutalizing the scions of logic?

Oh, surely Socrates and Plato are spinning wildly in their graves right about now.