California Supreme Court upholds Prop. 8; gay marriage remains banned in 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 said 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.

By 52% to 48%, voters approved the measure reinstating a ban on same-sex marriage after the state Supreme Court, in a landmark ruling last May, approved such marriages. Left in limbo were about 18,000 couples who got married in California between May and November of last year. (Note: An earlier version of this post said voters approved by a 52-48 margin the measure reinstating a ban on same-sex marriage after the state Supreme Court, in a landmark ruling last May, approved such marriages.)

The case for overturning the initiative was widely viewed as a long shot. Gay rights lawyers had no solid legal precedent on their side, and some of the court’s earlier holdings on constitutional revisions mildly undercut their arguments.

But gay marriage advocates captured a wide array of support in the case, with civil rights groups, legal scholars and even some churches urging the court to overturn the measure. Supporters of the measure included many churches and religious organizations.

The legal fight over same-sex marriage in California began in San Francisco in 2004, when Mayor Gavin Newsom spurned state law, and the city began issuing marriage licenses to gay couples. Long lines of couples showed up to marry and celebrated within view of the court with rice and champagne.

Those marriages sparked a national debate about gay rights and made the marriage question a political issue in an election year. Dozens of states later adopted constitutional amendments to bar same-sex marriage.

Those gay couples who wed in San Francisco later had their marriages rescinded by the California Supreme Court, which ruled that a city could not single-handedly flout state law. But the court said supporters of marriage rights could challenge the ban in the lower courts.

The legal fight moved to San Francisco Superior Court, where a judge struck down the marriage ban as unconstitutional. A Court of Appeal in San Francisco later overturned that decision on a 2-1 vote. The state high court eventually took up the case, which culminated in a May 15 ruling last year declaring gays could marry each other.

Before last fall, California was one of only two states — the other was Massachusetts — to permit same-sex marriage.

Iowa, Connecticut, Vermont and Maine have since legalized it, and lawmakers in New York, New Jersey and New Hampshire are considering bills of their own.

California’s historic 2008 ruling, written by Chief Justice Ronald George, repeatedly invoked the words "respect and dignity" and framed the marriage question as one that deeply affected not just couples but also their children. California has more than 100,000 households headed by gay couples, about a quarter with children, according to 2000 census data.

As soon as the ruling was final, thousands of gay couples showed up at city halls around the state to marry, and many flew in from elsewhere for California weddings. While the wedding business was brisk, opponents mounted a heated campaign with the help of churches and conservatives to overturn the court’s action.

Even though the court has upheld Proposition 8, a key portion of the court’s May 15, 2008, decision remains intact. Sexual orientation will continue to receive the strongest constitutional protection possible when California courts consider cases of alleged discrimination. The California Supreme Court is the only state high court in the nation to have elevated sexual orientation to the status of race and gender in weighing discrimination claims.

--Maura Dolan in San Francisco

Comments

[Prop 8 is awesome]

Wow, the CA Supreme Court sort of made a great decision. Prop 8 is awesome!!

[Gregg Condon]

I'm dissapointed but not surprised at the decision. I'm very glad that all my friends and the 18,000 other couples will still be married. This fight isn't over by a long shot.

[Chuck Stewart]

Bullshit. That is all I can say to the courts. Heterosexuals should never have been allowed to determine our rights. The fight for equal rights continues.

[Tarwater]

A victory for our form of democrarcy. The will of the people.

[IT]

SHAME ON YOU, California. So much for constitutional protections for a minority.

WHose marriage will we vote on next?

[mad_bassist]

Watching this from New York and can only say how disappointed I am. Don't give up the fight - it's not over yet.

[ProtectMarriage]

Let Freedom Ring! Finally we are starting to see the great state of California upholding justice and democracy!!

[Iqbal]

Ridiculous. So now California will have two sets of gay couples? This makes no sense. Marriage should be made available to all -- gays and, yes, even straights.

[nik]

this state disgusts me. i used to believe in california, but after today i plan on moving as soon as i can. . .

[Gay and Proud in the OC]

OUTRAGE! To codify discrimination in the California Constitution is unacceptable.

Who's next on the right-wing witch hunt? Be very careful - your human and civil rights may be next!

[Roman A]

This is a Great Monent for California, the people Voted and the court upheald the voice of California. If you still want to have gay marriage, their are other States that will wlecome you.

[joecalbears]

Thank God! Let gays and lesbians continue to have their "civil unions", which give them all their human rights. Let my wife and I continue to have our marriage as defined by tradition and church, since time immemorial - as an oath and a bond between a man and a woman.

[lioness]

In this country, the majority rules. So let it be written; so let it be done.

[LJKelley]

Its a shame the some people believe the Majority can tell a Minority what to do. It is this kind of thinking that let rise to the Nazi party and the Holocaust.

[Wayne]

Ah well, it's all part of the process. Back to the ballot box!!

[bob]

Gay marriage takes rights away from kids. Every child deserves the right to have a mother and father. This is a fundamental right.

[Alex De la torre]

So sad but that was the expected decision.

I can only think of so many people I know that are being personally affected by this. Our state has a reputation of being a tolerant place for everyone, but I don't really see why we have that reputation. The courts have always done a great job at protecting minorities rights, but everytime the people of this state go to the polls, we tend to be pretty intolerant.

[Alex]

Hey people where are we going to protest??? WE HAVE TO because we pay our taxes as everyone else does...

[derek]

Hooray! California actually did something RIGHT!

[Jeremy]

This is ridiculous! What ever happened to religious freedom and choice? All this proves is that religion is still being enforced upon all American's. If you don't believe in same sex marriage then don't do it. I hate guns and Nascar but do you see anyone organizing to take that away from you?

[EduG8r]

I am so disappointed in this ruling. Shame on you, Supreme Court of California.

[WMT]

Personally, I am a Prop 8 supporter, and am glad to see that the Court is upholding the voice of the people. At the same time, I respect those who were/are against the propostion, and was impressed with their reaction in front of the court house. (The group gave a few chants, then left peacefully.)
This obviously isn't the last we'll hear on the topic, and I look forward to debates we'll have in the future.

[Ted]

"Which part of NO is not understood by the gay community?"

The same part that wasn't heard by every other group (including religions) that wanted equality here in America when they couldn't have it in other places.

[daniel]

democracy in California = the right of a small majority to deny basic civil rights to those they don't approve of

[daniel]

justice in California = updating Dred Scott for the 21st century

[Ima Libertarian]

Can anyone please tell me why it is constitutional for the gov't to regulate marriage at all? What's wrong with civil contracts for everyone? Leave the definition of marriage where it belongs - as a social construct. Why does the gov't insist on meddling in our personal affairs?

[dwellswho]

The gays pissed off to many straight voters attacking churches and those legally voting

[Amy]

This is ridiculous. RIghts aren't something you can base on someone's sexual orientation, race, height, weight, whatever you choose. Homosexual people are still people and Americans and no matter what the bible or god says, they have the same rights as everyone else. California needs to stop thinking about what the churchfolk want and start thinking about the fact that they're oppressing the rights of their own citizens.

[Corwin]

For those of you expecting the Supreme Court to overturn this and outraged that they didnt, I direct you back to PoliSci 101. This is not an issue that should have even been in the courts. The only way to beat this is to introduce an initiative to repeal Prop 8. Get off your indignant high horses and get to drafting something to beat it. Protest all you want, scream yell cry and moan, it doesnt change the fact that a law was passed by a voter majority. If you dont like it, and think the climate has changed, then take it back to the voters. But understand this: At some point one side will win and the other will lose. Someone's gonna be upset and kicking and crying @ lawmakers and court justices won't change voter mandate.

[Greg]

Show how White Trash CA is becoming. This is why religion should be banned.

[Zach]

"Every child deserves the right to a mother and a father," Bob? I'm so tired of this bumper-sticker morality. Are marriages to be compulsory upon pregnancy or divorces forbidden so that parents will always be around, and will you prevent their deaths so that orphans need never be adopted by gays? No, I suspect you've not considered what an impossible, impractical, illogical, and irrelevant idea that is.

[Dan H.]

While I support gay marriage, I also support the ability of our legal system to make the correct decision, and in this case they did. Prop 8 was a voter initiative that passed, and as such, can not be stricken down by a California Supreme Court ruling. The ruling in this case does not show that the California Supreme Court is against gay marriage, but rather that they must play by the rules. To anybody who is saying now they need to move from California due to this court decision/ comparing the courts actions to that of a Nazi regime, I think that you should move from California because we don't want you here. Also for those interested here is the link to the case so you can read it and understand why it was dismissed.
http://www.facebook.com/ext/share.php?sid=86482669925&h=63aA9&u=b_dxn&ref=nf

[Larry]

daniel: Don't feel too bad because it works both ways! Mormons and right-wing evangelicals are also a minority in California, and given social trends on the West Coast in general, an increasingly unpopular one.

Maybe someone should try and get an amendment on the ballot to give them a taste of their own medicine... Even if it doesn't pass, all the ugly campaigning would certainly make them think twice about trying to deny rights to others.

[HN]

I absolutely love the "will of the people" argument that I keep reading. Wake up people; America isn't a direct democracy. We have those pesky three branches of government, and what's more each state has it's own three branches. Direct voting on issues is, by no means, the primary nor the most valid way to make laws on either a state or a federal level. Or at least, it hasn't been in the past.

The role of the state and federal courts isn't to uphold whatever the people say. That would be redundant as well as stupid. The California Supreme Court is, theoretically, put in place to determine whether state laws are valid, regardless of whether the majority of people agree with those laws. The case against Prop 8 seemed completely valid to me, though I am not a lawyer of any kind. It seems to me the California Supreme Court really didn't do its job, which is reprehensible.

This is just so disappointing.

[bootsbuck]

That's right, its in the Bible. Also in the Bible, it says anyone that works on Sunday shall be put to death...too bad about all those NFL players.

[andrea]

What a sad day, looks like I am still a second class citizen...why do people even care if two men or two women get "married"? Why do people spend time worrying about how people, they don't even know, decide to live their lives with the person that they love, even if it is the person of the same sex? Well, I guess the fight continues for Justice for All.

[Kathlyn Horan]

to "Bob" who said, "Gay marriage takes rights away from kids. Every child deserves the right to have a mother and father. This is a fundamental right." If this is the case than why isn't divorce illegal (over 5o% of marriages end this way)? or single parenting? I'm afraid your argument betrays your lack of logic. It also betrays your lack of knowledge of the reality of heterosexuals lack of respect for marriage. Traditional marriage now seems to mean--only 50% of straight people respect it.

[Marco]

The majority wins! ACCEPTED and if you don't like it stop and use all that energy and money to help grow our State we need that more than this...and if you insist just move to other state like Iowa and DONE!! Try to do this in N.Korea or Cuba - you wish!! Accept the vote of the people the majority!!

[Randy]

In LA there will be a protest scheduled at the LA county marriage license bureau from noon to 3pm. 4716 E Cesar Chavez Ave in East LA. There will also be a march and rally scheduled to start at 7pm at the corner of San Vicente And Santa Monica in West Hollywood. Will arrive at Hollywood and Highland for a rally/speakers around 930 pm. Hope 2 c u there!

[Wii60]

In this issue, whether or not you support gay marriage doesn't matter. What would have been even worse than rights denied would have been a state supreme court saying that a Constitutional amendment is unconstitutional. That would have been a devastating precedent to set.

Opponents of the Prop should be looking to the next election cycle. It took a lot to get it through in the first place, I doubt that it will be easy to defend. Frankly, California's constitution is far to easy to amend. California voters should take advantage of their direct democracy and set the limit to a Super Majority to prevent something this controversial happening again.

[Sally]

I am very sorry that this decision was made. However, now California gays have to react as adults: No is no. You can't stamp your feet and demand to get your way on everything in life. Even so, what you can do is marry in a state where it is allowed.

Think of the people who live in homeless shelters and can't afford healthy food because of the economy. How many gays worrying about marriage are in this dire position?

[Philip]

"Let Freedom Ring! Finally we are starting to see the great state of California upholding justice and democracy!"

You are KIDDING right? The Supreme Court basically upheld a poll to see who was homophobic in California. So now that marriage is protected will the divorce rate go down? Will spousal abuse decrease? How about child abuse in mom and dad homes? How about single moms?

Should their children be taken away because there isn't a dad? This vote basically decided who was allowed to get a state license and who isn't? How can denying licenses to one group of people based on fear, hate and religious bigotry be constitutional?

I would like one of you pro-prop 8 people to tell me how a gay couple getting the same legal rights with a marriage license affects your straight marriage?

Come on tell me- how does a gay couple getting the same license, that would have absolutely no contact with you or your life any of your business and how does that affect you and your marriage?

[Cassandra Washington]

This was posted to The Desert Sun newspaper in Palm Springs, California by Rev. Dr. Henry Lee Bates:
Religious intolerance and ignorance can celebrate today, but the celebration will be short-lived. There is a Power Greater that is for the Good of All, and this Power will not be denied. "Love your neighbor as yourself" ... appears to have been forgotten, but the Spirit of Love, Life and Truth, will reign Supreme in the right and perfect time!
Congratulations to the 18,000 people who can rest assured today that they are now pioneers in a movement that will see same-sex marriage legalized not only in California, but in all 50 states!
G-d is blessing you now, right now, right where you are.

[Roger Pariseau]

Let's get real about all this! First, early mankind (and living today "lost" tribes) participate in group sex so that the males have no idea whose kid is whose. The kids are raised communally after weaning. Then and now these folks do pair bond but sex is not paramount and is shared among fellow tribal members.

When mankind evolved agriculture, erected permanent shelters, and land began to have real value, men took over tribal leadership from the ladies. Now owning property and wives, men needed to know whose kid was whose so they knew to whom to pass on their properties. Also during this period, formal religions were formed that purported to offer guidance to the masses but really, then as now, serve to legislate things otherwise impossible to impose. From all this came the concept of marriage vs. simple pair-bonding.

The historical permutations of marriage have varied over the ages to what we have today. When I was a boy it was almost impossible to divorce. Today divorce is lawyer's heaven, religious considerations notwithstanding.

The last "strange" consideration for the moment is the fact that some other-than-human creatures do practice homosexuality. The closest critters to us that have homosexual behaviors are the bonobos (pan paniscus). These chimpanzee-like animals walk erect like us, have a complex social structure, are matriarchical, and share many of the same genes as humans (pan homo sapiens). Unlike us they are peace loving, agreeable and amenable. They are, in a word, the original hippies.

Marriage, when it works, is a wondrous thing! Having met and won the woman-right-for-me some 38 years ago, I can attest that monogamous matrimony brings rewards inconceivable to those who have yet to experience it. But this is apparently not achievable by all so, perhaps, pair-bonding could be formalized via "domestic partnerships" as in many other countries.

Insofar as the law is concerned, it's only this partnership that counts -- marriage, if desired, comes afterward in some religious or other ceremony. There should be no problem whether the partners are multiple, or homosexual, or anything else insofar as the rest of us are concerned. After all, as a group we are after social order, not the imposition of our personal values upon others.

Or is all this an impossible dream under the "Land of the Free's" nanny governance?

[John Galt]

Show how White Trash CA is becoming. This is why religion should be banned.

Posted by: Greg | May 26, 2009 at 10:37 AM

Can we assume, then Greg, that you would ban the practice of Islam. You know Islam, don't you Greg. It's the religion all the terrorists belong to . . . oh, perhaps it's just certain religions and their beliefs you'd like banned. Ban Catholicism or any peaceful Christian religious group that disagrees with you. Whoops, better backtrack, Islam would put gays to death, not just restrict their ability to marry. Why are gays incapable of going to a state where gay marriage is legal to have their ceremony? Why? Is it because they want the entire nation to be enslaved by their demands? Just wondering.

[Brenda647]

I am so ashamed of my home state. I don't get it. No one can give me one good explanation why same sex marriage causes so much fear. What does it have to do with you and your life?

It was not a religious issue and yet somehow it's become all about the churches. Those of you who say you are Christian should be ashamed of yourselves. I defy you to find one quote atrributed to Jesus that says homosexuality is a sin. And I mean from the New Testament; Just one direct quote.

But, what makes this really stupid? California may lose some of it's most affluent citizens because they'll have to move to another state to be treated like any other American. There's a lot of money in the gay community and I have a feeling quite a few of them are thinking why should they support a state that's not going to sujpport them.

[DaMav]

This is great news, but as many have said, the fight isn't over.

A year ago I didn't care much one way or another, but watching the gays respond with violence and by attacking churches when they lost an election was so alarming and appalling that when it's on the ballot in 2010 I plan to send a generous check in support of those opposed to gay marriage.

[daniel]

Plessy v. Ferguson was wrong then. It's still wrong. Regardless of whether a majority of voters agree.

Using plebescites to decide on basic rights is a recipe for disaster. Too bad the Cal Supreme Court is unwilling to step up and state that simple majorities are not the final word in a proper democracy.

[Lisa]

Don't 4get america is assbackwards anyway. Soon, it will locate it's tail and all the unions will be recognized. As IF! Marriage is damn near a joke and a half - personally I don't see why gay people don't come up with their own terms and culture - y imitate the half-n-half marriage rights of straight people? LOL! I'll keep helping with the fight though - there should definitely be all the same rights - the word itself is tainted but if you want it - let's fight for it. Hopefully all the narrowminded hypocrites will finally feel their brains shrinking 2 nothing - same rights - it's not your earth, your country, your world!

[Zach]

"However, now California gays have to react as adults: No is no."

Uh, no Sally, that's not how it works. This is about equality, and equality is not like a cookie a child doesn't get from Mom, from which a good little boy just walks away because some kids don't have cookies at all. If you're "sorry" about Prop 8, help do something about the damage it's done to the people and Constitution of California, or if you don't care enough then you go help the poor and let those who do care about Prop 8 deal with it.

We wouldn't have Prop 8 if gay marriage foes accepted "no means no," so I see no good reason democracy should stop there.

[CHal]

It's a minor set back. We'll get there-- even our opponents know and concede that, eventually, same-sex marriage will be legal everywhere in the US. It's just a matter of time. Don't give up!

[John]

This is just sad. California had always been considered a bastion of civil liberties. With this decision, no longer. I'm not from California, but it's depressing that the "great California" has become the new Alabama while other states are moving forward and legalizing mariage between same-sex couples. Enjoy your new status.

[Steve]

Oh America, how backwards ye are.

All you gay folks who want to get married, come over to Europe where we've already joined the 21st century and have laws against discrimination based on sexual orientation.

We've now had gay marriage so long we've already had the first gay divorces!

[Tyler]

PROP 8A: "MARRIAGE IS DEFINED AS BETWEEN A **WHITE** MAN & A **WHITE** WOMAN."

Do you think the CA Supreme Court would allow THIS proposition to stand?? Of course not because the justices are more understanding of racial issues and less prejudiced against blacks and hispanics than toward gays. So much for equal treatment under the law and having justices free of heterosexist and religious biases.

Their decision reflects their ignorance and lack of understanding of what it means to truly live as a gay person. Because if they did know, they would have fully appreciated just how much gays will be treated unfairly under Prop 8, and thus ‘the scope’ of the issue is much larger, instead of trivializing it merely as word change only - marriage or partner.

[Greg]

"In this issue, whether or not you support gay marriage doesn't matter. What would have been even worse than rights denied would have been a state supreme court saying that a Constitutional amendment is unconstitutional. That would have been a devastating precedent to set. "

Really? I don't think that's true. If Article I says "A equals B," and an amendment passes that says "A is not equal to B," you now have a constitution in conflict. How do you make decisions when the constitution is contradictory? This is law, not religion.

California now, in effect, has a conflicting constitution: an anti-discrimination section that includes sexual orientation, and an amendment that discriminates against gays for religious reasons. I think the damage has been DONE, not AVERTED as you intimate.

[sergey]

majority has no right to expel or oppress minorities they deem as immoral therefore i would approve of gay riots

[sergey]

roman you join the mob to kick out gay people. well that is why i approve those gay crowds who wanted to kill out those who want to be kicked out. if you push your morals pushed on others you don't deserve to live. the rights of the community cannot trump the rights of individuals. gun control is a bad idea. because with guns groups of individuals who are being kicked out by the community claming its "rights" can just attack and trump all the so-called rights of the community. i am defender of the individual liberty, to act regardless "morally" or "immorally" and if community pushes morals on individuals i believe that individuals can take AKs and attack the whole community and those oppressors will freak out and will not protect their morals when they see AKS

[jswrtzlndr]

If you read the opinion as I have, you will see that the court fully upheld the rights of gays to marry and to enjoy all of its benefits and burdens, and all that Prop 8 stands for is that they can't call their married relationship a "marriage". I know that it really sounds silly, but that is what the ruling says. It comes down to semantics. Gays and all of CA should be proud that the rights of gays to marry was, in fact, fully upheld.

[samm]

gay marriage is against God. God decided marriage was between one man and one woman. i guess people just think that someday when they die, God's just going to say oh well, it's ok that you ignored me and disobeyed me. the bible says that if you know him not on earth, he will know you not when you die. knowing him means following his book and not just the parts you want to follow like only the new testament and not the old testament. ignore it alll you want but know that you will be the one to endure the consequences, not anyone else. he knows which people respect his wishes and which do not. i really believe that most people do not hate gay people. they just do not want the definition of marriage that God defined changed. there are many greater issues everyone should be focusing on such as those that wish to attack israel and north korea wanting to attack the US. everyone is so busy worrying about things like this that our enemies are going to attack when we least expect it. we won't be too worried about gay marriage once our country is nuked will we? oh, yes, that is when we will be BEGGING for God's help or blaming him. everyone should read "Jerusalem Countdown" as it describes in detail what is coming based upon the bible's teachings. israel will not be wiped off the earth because God has said so and israel is God's holy land and the day that comes when someone is about to do it such as iran with their nuclear weapons, the bible says that will be the world's last day. the jewish people are also God's chosen people. the bible says that every country that does not stand with israel and protect her will be destroyed that day. in fact, the bible does not mention that the US is actually still in existence on that day. get it together people. we need to be doing everything we can to follow God's will because it may be our last chance. i know people laugh but you won't be laughing on that day.

[Kristen]

Regardless of what one believes about same-sex marriage, it cannot be overlooked that by allowing Prop 8 to create the "narrow exception" for the term marriage, the Horton court undercuts a major part of California's equal protection guarantees. It essentially creates a "separate but equal" structure. As history has taught us, separate is "seldom, if ever, equal".