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Marriage In California: Separate But 'Equal'

California Supreme Court splits the baby on same-sex marriage

Marriage In California: Separate But 'Equal'

SAN FRANCISCO – The California Supreme Court today decided that gay Californians don't deserve the same rights as hetero ones, ruling that Proposition 8, passed by a modest majority of California voters last November, is in fact a legitimate amendment to the California Constitution's guarantees of equal protection under law.
In so doing, California's high court – as have, admittedly, courts in several other states – has thwarted at least the spirit, if not the exact language, of myriad U.S. Supreme Court cases which have held that discrimination based on race, gender or religion is unconstitutional.

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"[O]ur task in the present proceeding is not to determine whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution," wrote California Supreme Court Chief Justice Ronald M. George for himself and five other justices in a 136-page ruling. "Regardless of our views as individuals on this question of policy, we recognize as judges and as a court our responsibility to confine our consideration to a determination of the constitutional validity and legal effect of the measure in question. It bears emphasis in this regard that our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values."

"Contrary to petitioners’ assertion," Justice George continued, "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 [see below] — 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' 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." [Citations removed here and below; all emphasis in original]

But while the California high court stressed its adherence to the "principles and rules embodied in the California Constitution," it clearly failed to pay attention to the principles of the "Supreme Law of the land," the U.S. Constitution.

One need look no further than the 1954 decision in Brown v. Board of Education for the constitutional view of such "separate but equal" schemes.

"Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other 'tangible' factors may be equal, deprive the children of the minority group of equal educational opportunities?" asked then-Chief Justice Earl Warren. "We believe that it does... We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment."

So if public school children who, whether white or black, have "equal educational opportunities" but are nonetheless "unequal" simply because they are not being educated in the same facilities as their differently-colored brethren, how different is that from gay couples "separately but equally" in civil unions "enjoy[ing] all of the constitutionally based incidents of marriage" still not being equal because they are in fact not "married"?

The opinion goes to great lengths to distinguish Prop 8 as a "constitutional amendment" rather than a "constitution revision" – which would require a two-thirds vote of the state legislature – and notes that such important changes to the state Constitution including women's right to vote, reinstatement of the death penalty, an explicit right of privacy and even the initiative, referendum and recall process itself were all amendments rather than revisions. Further, it states that a "revision ... must make a far reaching change in the fundamental governmental structure or the foundational power of its branches as set forth in the Constitution" – which, it concludes, the definition of marriage as between a man and a woman does not.

Moreover, notes blogger "trumpeter" on DailyKos.com, "Petitioners also contend that Proposition 8 should be considered a constitutional revision because it conflicts with a fundamental constitutional principle that protects a minority group from having its constitutional rights diminished in any respect by majority vote. The majority opinion explains there is no authority to support the claim that in California a majority of voters may not adopt through the initiative process a measure that diminishes a state constitutional right, even if that right has been interpreted and applied in a judicial decision. The opinion cites many amendments to the California Constitution, adopted through the initiative process by majority vote in response to court decisions, that have had just such an effect."

However, John Aravosis of AmericaBlog sees a bright spot in the fact that even the majority refused to invalidate the approximately 18,000 same-sex marriages already performed in California before Prop 8 was passed.

"The fact that 18,000 gay marriages will remain on the books means that, eventually, another case will go to the California Supreme Court, questioning the constitutionality of laws banning gay marriage, and the court will have to consider why those 18,000 marriages how not destroyed traditional marriage as we know it," Aravosis analyzed. "In other words, the ongoing existence of these marriages, with no demonstrable harm being caused by their existence, will call into question, if not outright destroy, the bigots' argument for why the state has an interest in banning gays from getting married. In more colloquial terms, no harm no foul."

Sadly, though, only Justice Carlos R. Moreno seems to have understood the fundamental change brought about by Prop 8 to the rights of the citizens of California.

"I conclude that requiring discrimination against a minority group on the basis of a suspect classification strikes at the core of the promise of equality that underlies our California Constitution and thus 'represents such a drastic and far-reaching change in the nature and operation of our governmental structure that it must be considered a ‘revision’ of the state Constitution rather than a mere ‘amendment’ thereof'," the justice wrote. "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. I therefore dissent..."

"The equal protection clause is therefore, by its nature, inherently countermajoritarian," Justice Moreno continued. "As a logical matter, it cannot depend on the will of the majority for its enforcement, for it is the will of the majority against which the equal protection clause is designed to protect. Rather, the enforcement of the equal protection clause is especially dependent on 'the power of the courts to test legislative and executive acts by the light of constitutional mandate and in particular to preserve constitutional rights, whether of individual or minority, from obliteration by the majority.'"

Justice Moreno quoted extensively from what the court refers to as "the Marriage Cases": A case that grew out of San Francisco's Mayor Gavin Newsom's decision in 2003 to issue marriage licenses to any couples, gay or straight, who wanted to be married, and which action resulted in the 2004 California Supreme Court decision in Lockyer v. City and County of San Francisco, and which led to the high court in 2008, in In re Marriage Cases, invalidating California's statutes limiting marriage to man/woman unions.

"Describing the effect of Proposition 8 as narrow and limited fails to acknowledge the significance of the discrimination it requires," Justice Moreno stated. "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. Granting same-sex couples all of the rights enjoyed by opposite-sex couples, except the right to call their 'officially recognized, and protected family relationship' a marriage, still denies them equal treatment."

Justice Moreno then traces the history of the distinction between "amending" the Constitution and "revising" it, concluding that, "The idea that the electorate may, by amendment, significantly curtail the constitutional rights of minorities is not, contrary to the majority, squarely supported by case law... Unlike modifying legislative or judicially created remedies, withholding a fundamental right from a minority group on the basis of a suspect classification is inherently antithetical to the core principle of equal protection that minorities are to be protected against the prejudice of majorities by requiring that laws apply equally to all segments of society."

"Proposition 8 represents an unprecedented instance of a majority of voters altering the meaning of the equal protection clause by modifying the California Constitution to require deprivation of a fundamental right on the basis of a suspect classification," the Justice concluded. The majority’s holding is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution."

Several rallies against the high court decision will be taking place around California this evening, including one large demonstration outside San Francisco City Hall sponsored by Marriage Equality USA. After about an hour of speeches, the demonstrators will march down Market Street to Yerba Buena Gardens, in front of the Martin Luther King Memorial – certainly a fitting end point to a protest of the same sort of discrimination that motivated Dr. King in his battles. A similar rally will take place at 6 p.m. at the Old Orange Courthouse in Santa Ana. Check the Internet for demonstrations in your area.






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Mark Kernes

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