Gay Marriage Advocates in California Face Another Setback

The California Supreme Court upheld Proposition 8 yesterday, the initiative Golden State voters approved last fall to amend our state's constitution to recognize only unions between one man and one woman as marriages.

Now advocates of gay marriage have their work cut out for them. Since the court refused to respond favorably to their opinion, they must go back to the people and ask them to reverse Prop 8. To do that, they'll need make a better case than they did last fall.

While the court did overturn Prop 8, the decision was not entirely bleak for gay people. The court ruled that the marriages of same-sex couples performed after it struck down state statutes limiting marriage to opposite-sex couples "but prior to the effective date of Proposition 8 remain valid." Moreover, in its ruling the court made clear that this was an issue of state constitutional jurisprudence:

[T]he principal issue before us concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process so as to incorporate such a limitation as an explicit section of the state Constitution.

Indeed, Chief Justice Ronald J. George devotes the better part (indeed, almost the entirety) of his opinion to examining Proposition 8 in light of the Golden State's liberal initiative process for amending the state constitution. The court distinguishes this process from those in other states and at the federal level, pointing out:

[T]he process for amending our state Constitution is considerably less arduous and restrictive than the amendment process embodied in the federal Constitution, a difference dramatically demonstrated by the circumstance that only 27 amendments to the United States Constitution have been adopted since the federal Constitution was ratified in 1788, whereas more than 500 amendments to the California Constitution have been adopted since ratification of California’s current Constitution in 1879.

In short, the decision turned on whether Proposition 8 was an amendment or revision to the state constitution. A revision would first have to pass through the state Legislature.