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Prop 8 Upheld: Protests Tonight

Cara

As I’m sure you’ve all undoubtedly heard by this point, California’s Supreme Court ruled to upheld Prop 8, which bans same-sex marriage in the state.  They have, however, ruled that the 18,000 couples who were married during the period when it was legal before Prop 8’s passage will remain married.

I’m not surprised, honestly.  But I am incredibly sad, and angry.  It’s the worst, most cowardly “compromise” ever.  And I’m very, very sorry to all of those living in California who will be affected by this ruling.

I don’t really have much of anything to add to the discussion at all, and haven’t had the chance to read much — so if you’ve been reading some interesting takes on this leave them in the comments.  Instead, I’m writing to notify everyone that there are protests taking place tonight in over 100 cities in opposition to the ruling and in support of equal rights.

Check out if your city is holding a protest here, and if you are able to attend, do.

30 thoughts on Prop 8 Upheld: Protests Tonight

  1. Like you, Cara, I’m not surprised, but I am deeply saddened and disappointed. I’m at least happy that the court allowed the existing marriages to stand (although I’m unclear as to how that works, which in turn makes me hopeful that such uneven treatment will be the inspiration for future cases challenging the separate-and-unequal marriage laws).

    I certainly don’t envy the position that the CA Supreme Court judges were in here. After all, this is the same court that legalized same-sex marriage in the first place — certainly this could not have been pleasant for them. The decision ultimately wasn’t about same-sex marriage rights, it was about the California referendum system. In order to reinstate marriage rights, the court would have had to basically rule that California citizens do not have the right to amend their state constitution through a referendum vote — not an easy position to stake out. (The actual legal argument is a little more complicated, but that would be the soundbite).

    One reason I am nonetheless optimistic: Attitudes about same-sex marriage are changing rapidly. Prop 8 was devastating, and it was a major wake-up call. I really truly believe that if gay rights groups can raise enough money to bring marriage equality back to the California voters a year from now, things will go in the opposite direction.

    It’s cold comfort, I know, and it makes me ill to realize that we live in a country where the fundamental rights of some citizens are at the whim of the voting public (who are in turn manipulated by wealthy right-wing interests). But I’m less angry at the court and more angry that the Prop 8 propagandists and supporters who created this situation.

  2. I don’t necessarily disagree with the court’s decision, although I find the creation of two classes of gay relationships in the state deeply troubling.

    Still, there is something broken about the system if you can vote away the rights of a minority. Not enough of a legal buff to suggest how to fix it, but surely there is something that could be done.

  3. Yeah, I agree Jill. That’s why I’m not surprised. And I’m just sad and angry in general, all over the place. I wish the court could have found some way around this. But I don’t know enough to know that they reasonably could have. In any case, though, yes, the vast majority of the blame goes to the bigots to got this on the ballot in the first place and worked to get it passed.

    Still, there is something broken about the system if you can vote away the rights of a minority. Not enough of a legal buff to suggest how to fix it, but surely there is something that could be done.

    Yes. THIS.

  4. This wasn’t a “compromise” so much as it was a legal hair splitting. Compromise is what legislatures do, not courts. In my view protesting the decision as such is counterproductive because the justices were just doing their jobs and interpreting the law as it is not as they wished it to be. Indeed as Jill pointed out their personal sympathies undoubtedly reside with pro gay marriage.

    Moreover justices aren’t responsive to political pressure (rightly so assuming one believes in the rule of law). In my view pressure should be put where it belongs – on the legislature – to come up with a permanent solution.

  5. Moreover justices aren’t responsive to political pressure (rightly so assuming one believes in the rule of law).

    Ah, if only. But that’s definitely not the case when judges can be removed by the voters, as is the situation in the California State Supreme Court.

  7. Many justices are voted in, Unfortunate. I grew up in AL, my mother briefly dated a man who was running for a judgeship. It is, indeed, scary.

  8. Well, I’ve actually read the decision and there is an important facet of the case that is worth repeating that I’ve not seen widely reported as of yet.

    The “compromise” of grandfathering existing marriages is part of a very crafted decision that reduces Proposition 8 to merely a matter of semantics. The argument goes like this:

    * Proposition 8 did not explicitly discuss existing same-sex marriage, therefore, it must be interpreted in the most limited way possible with consideration for precedent regarding retroactive measures.

    * Proposition 8 did not explicitly address the interpretations of the equal protection clause and privacy clause that were behind Marriage Cases therefore, Proposition 8 does not affect the constitutional mandate for recognition and status equal to marriage.

    * Because supporters of Proposition 8 made the “definition of marriage” their casus belli, Proposition 8 is only an amendment about definitions, and has no impact on rights granted derived elsewhere in the State Constitution.

    Short of a complete rejection of the Proposition, I can’t imagine a decision that’s could be harsher to opponents of gay rights. The court in plainly directive language affirms that gay rights is still a constitutional mandate as far as they are concerned.

    Yeah, it’s damage control but it’s still an opportunity for legislative and legal activism pending a repeal.

  9. In my mind what would have been a total disaster would have been a decision that simply addressed the procedural aspects of the case and leaving the meaning and scope of Proposition 8 undefined.

    Instead, the court narrowly defined the meaning, scope, and relationship of Proposition 8 within existing case law, and it did so by reaffirming its earlier constitutional mandate.

  10. When prop 8 was first raised, I felt that it should not have been allowed onto the ballot.

    Not because of the malevolent hypocrisy of “defending traditional marriage,” or the hateful bigotry,but because the proposed amendment was, itself, bad law, that violated the pre-existing CA constitution

    The amendment, as passed,
    (a) had no provision for exempting pre-existing marriages from the actions of the amendment (although the proponents claimed, when they were pushing the amendment, that nullifying the prior marriages was neither the intent nor would be the eventual result — a stance that was shown to be a damned lie as soon as the amendment was passed and they started agitating to formalize the dissolution of those marriages)

    (b) Under prior CA court decisions, marriage is considered as a contract between two parties. And section 9 of the CA Constitution states that

    “…. A bill of attainder, ex post facto law, or law impairing
    the obligation of contracts may not be passed…”

    Broadly constructed, a change to the CA Constitution is a law.

    (c) another section of the CA Constitution declares that the amendments are not open to broad interpitation (Article 1, sec 26 “The provisions of this Constitution are mandatory and
    prohibitory, unless by express words they are declared to be
    otherwise.”)

    This is not over — those who pushed prop 8 are going to challenge the part of the decision that allows the pre-existing marriages to stand.

  11. Pingback: California, what is wrong with you? « a shiny new coin

  12. As I’m not a Californian, nor planning to marry in California any time soon, I unfortunately can’t directly participate in the following forms of protest:

    1. Do not get married in California. Get married in a state that actually recognizes marriage equality, such as Massachusetts or Vermont. This especially applies to straight allies and queers in opposite-sex relationships, as you can tell Aunt Marge why you’ve decided to hold the wedding 3,000 miles away from where everyone lives. If you can’t afford to go East, or even to Iowa, get married in New Mexico (which apparently recognizes some same-sex marriages) or Oregon (where the same-sex marriage ban is merely statutory).

    What impact will this have? If, say, 10% of straight California couples marrying in the next year decide to boycott their state, that puts even more pressure on wedding venues, hotels, florists, caterers, etc. to support (with both their votes and their money) the overturn of Proposition 8.

    2. If you’re a small business owner in California, and your business does wedding-related things (like florists, caterers, stationers, photographers, bands, etc.), stop doing them. If you’re a bakery owner, stop providing wedding cakes – or at least provide tiered white cakes WITHOUT WEDDING TOPPERS. Show the citizens of California that it’s pretty damn hard to have a good wedding without the work of LGBTQ Californians and their allies.

    Now, as most people under 35 are in favor of gay marriage, most brides and grooms are already in sympathy with us. But we’re now showing their parents – their mothers, especially – that homophobia has consequences. The Muffies of Orange County WILL fight for same-sex marriage, especially if it’s the only way Enrique’ll do the hair for their wedding, and if there’s anything that “Clueless” and the “Legally Blonde” movies taught us, it’s that wealthy SoCal girls with a Cause are damn near unstoppable.

  15. Ellie: but rights weren’t denied – the court held that Proposition 8 did not affect the “right to marry” that was established in Marriage Cases. Proposition 8’s only effect is that when gay people marry, it’s not called marriage, it’s called something else. Now, I’m not saying that’s unimportant. It’s extremely insulting and divisive, and “separate but equal” has been bullshit for forever. But the Court defended what it could – the state of California is still obligated by its constitution to give same-sex couples the same recognition and rights it gives het couples.

  16. CBrachy is very astute. I said when Marriage Cases came out that it was huge for reasons beyond the headline: it applied strict scrutiny protection to sexual orientation across the board. I have not had time to read this decision, but though I wish it had gone the other way, the reporting suggests that it offers little comfort to the other side. Marriage Cases stands, except for the word “marriage.” The effect of Prop 8 has been limited to the word itself — but even that is up for grabs, because what the ordinary majority of voters can take away, they can give right back in the next cycle. All the H8ers got was the word, and they probably lose that a year from November. In the meantime, sexual orientation is a strict scrutiny issue in California.

  17. the court held that Proposition 8 did not affect the “right to marry” that was established in Marriage Cases. Proposition 8’s only effect is that same-sex couples are no longer allowed to get married in California.

    Fixed that for you.

    A registered partnership for which the state grants rights equal/identical to marriage, is not marriage.

    For example, Sean, a same-sex couple who got married in California, and who move to Israel, will be legally married in Israel: Israel recognizes all civil marriages made outside Israel, since within Israel only religious marriage is allowed. A same-sex couple who have registered their partnership in California, and who move to Israel, will not be recognised in Israel as legally married: Israel takes no note of legal relationships outside marriage. The same is true of a number of other countries where same-sex marriage is recognised: France, Belgium, the Netherlands, Sweden.

    Further, when Obama repeals DOMA, which is still on his to-do list, married couples will automatically be recognised as married, without need for any further action, in every state of the union. Couples in a legal relationship that is not marriage need not be recognised – and won’t be, you can bet on it, in states where the state-level legislation is against legal recognition.

  18. I hope that this will spur a change in how the referendum system in California works. That a 2/3 vote is required to impose new taxes or approve a budget, but simple majority of voters can amend the Constitution is ridiculous.

  19. This is not over — those who pushed prop 8 are going to challenge the part of the decision that allows the pre-existing marriages to stand.

    I don’t see how they can without facing the same arguments used by the court to demolish the first challenge:
    1) the court is not obligated to consider “plain language” or “intent”

    2) multiple legal precedents require retroactive acts to be explicitly retroactive and

    3) persons already married have, in good faith, entered into legal arrangements that are protected elsewhere in the constitution. The legal interests in maintaining those arrangements outweigh the very limited scope of Proposition 8.

  20. Further, when Obama repeals DOMA, which is still on his to-do list, married couples will automatically be recognised as married, without need for any further action, in every state of the union.

    Not clear. The portion of DOMA that is merely statutory is the federal recognition, from partner benefits to joint tax returns to everything else. The full faith and credit question is the area where DOMA is probably either superfluous or unconstitutional.

    If the full faith and credit clause of the Constitution requires that states recognize marriages solemnized in other states without discriminating based on the sexes of the participants, then no ordinary act of Congress can change that, and that provision of DOMA is invalid. Conversely, if there is a public policy provision that would permit a state to refuse to recognize a marriage solemnized in another state because of the state’s long historical commitment to bigotry, then the bigot-support clause of DOMA is unnecessary. Either way, repealing DOMA resolves the federal recognition issue, but not the full faith and credit issue. The latter will be decided by the Supremes; that’s why it is important to replace one of the five conservatives with a judge who will go the right way on that one before it comes up. Kennedy isn’t Scalia on GLBT issues, but he can’t be trusted the way Ginsburg can.

  21. Stating that the court couldn’t do anything to stop prop 8 is bullshit. They have the power to declare any law OR even a constitutional amendment as “unconstitutional” at any time they like. They arent even required to give a reason. Their word is the law. This particularly cowardly group of justices has all the power they need to throw out prop 8, they just chose not to exercise it. The only check on their power is impeachment by voters/legislature, but that is EXTREMELY difficult to do, bordering on impossible. Here’s a homework assignment for you guys: find the total number of california court justices impeached in the last 50 years. The bottom line is that the court has ultimate authority (second only to SCOTUS) to decide however they want. They could have easily thrown out prop 8 and there’s very little the legislature or anybody else could have done to stop them.

  23. Stating that the court couldn’t do anything to stop prop 8 is bullshit. They have the power to declare any law OR even a constitutional amendment as “unconstitutional” at any time they like. They arent even required to give a reason. Their word is the law.

    Uh… no, not the way it works.

  25. Actually, Jill, I think Donna might have a point. The president isn’t supposed to hold people without trial, subject them to torture, or fight undeclared wars yet virtually no one with the power to do so is seriously talking about putting anyone from the executive branch in prison. Effectively, that means Bush did have the power to do those things because he did them and faces no consequences. From a certain point of view power isn’t what the relevant documents and statutes allow you to do but what the people who enforce those documents and statutes allow you to do. Such actions might not be a legitimate exercise of power, but I think it would be difficult to argue that abuses of power don’t constitute an exercise of power themselves.

    In that sense the court could do whatever it thought it could get away with, it’s only concerns being consequences and the chance of being overturned. Realistically the judges in question likely wouldn’t face impeachment if they engaged in a little judicial activism and even if they did they wouldn’t have too much trouble finding a well compensated position somewhere given that their firing would be seen by many as martyrdom. The morality and ethics of that kind of behavior can be debated until the end of time, but I think the underlying opportunity can’t really be denied. Sure, the role of judges is to interpret the law to the best of their ability (without that the rule of law doesn’t amount to much), but on the ground that isn’t always the case.

  26. COULD they have done it? Well, sure. But then they would have had no legitimacy, which is kind of a big problem. It isn’t a “little” judicial activism — it would effectively be directly legislating. There really wasn’t any colorable legal theory that they could have used, other than what the gay rights groups argued — and that wasn’t a civil rights argument. Look, I wish there was an argument as much as anyone, but there wasn’t. It sucks. But the whole point of balancing powers is to allow the branches to check each other. Here, the court made a decision and the voters essentially overturned it by amending the constitution. You can wish we had a different system wherein the courts were all-powerful, but that is not how it works. While in this case it’s certainly shitty, I’m not sure that as a general rule that’s how we would want it to work.

    Look: if the courts don’t have legitimacy, the whole system crumbles. If courts step out of their role as artibrators of the law — not law-makers — they lose legitimacy. I often think that “judicial activism” arguments are silly, especially in the context of same-sex marriage, because most of the marriage cases address civil rights and equality. This case wasn’t about that; it was about the California referendum system. For the court to overturn Prop 8, it would have had to strike a blow to that system. There was no realistic way to do that within the color of the law. I don’t like it, but there it is.

  27. “Stating that the court couldn’t do anything to stop prop 8 is bullshit. They have the power to declare any law OR even a constitutional amendment as “unconstitutional” at any time they like. They arent even required to give a reason.”

    Well, as Andrew Jackson said: “The Court has made its decision, now let THEM enforce it”

  28. “Still, there is something broken about the system if you can vote away the rights of a minority.”

    Yes, this is central to liberal democracy. The bill of rights was deigned in part to address this conundrum: tyranny of the majority.

    I think a solution is found within the 14th amendment, the due process and equal protection clauses plausibly making a ban on gay marriage unconstitutional, just like it did for interracial ones.

  29. That Jackson quote is in response to his helping Georgia force out the Cherokee from their native lands..just sayin.’

    I’m pretty sure that defiance of the courts isn’t what you’re advocating, Manju (guessing you were being sarcastic), just pointing out the historical context. If we defy it on something like this, then the other side has tacit permission to defy it on something like Worcester v. Georgia.

  30. chava:

    I pulled the jackson quote in response to Donna’s theoretical scenario: the court uses its power of being the ultimate arbiter of the law to rule prop 8 unconstitutional. in which case the executive could always pull the trigger on its power to enforce. and since power comes from the barrel of a gun, we know who wins.

    so ultimately legitimacy matters (as jill and you point out) if for no other reason than for the court to flaunt its power (not even give an opinion, go beyond plausible interpretations to simply legislating) is a losing game, considering the power of the executive and legislative branches. it almost came to that with scotus and fdr during the court packing standoff.

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