Faith & Social Justice: In the spirit of Richard Overton and the 17th C. Levellers

Supreme Injustice in CA: Prop 8 Upheld

As expected (and dreaded by GLBT folks and allies), the California Supreme Court rejected arguments that ballot initiative “Proposition 8” passed last Nov. was more than an amendement, but a revision of the California Constitution.  If that argument had prevailed, Prop. 8., which bans same-sex marriage, would have been struck down since revisions cannot be made by ballot initiative alone, but must go through the state legislature.  The CA Supreme Court Judges, even those voting originally that the state constitution guaranteed marital equality, had indicated back in January during oral arguments that they were not open to the “revision” vs. “amendment” distinction.  The really bad news is that they relied on the argument of Prop. 8 litigator Ken Starr (of Monica-gate infamy!) that because the rights of convicted felons to vote can be stripped, so also can previously recognized rights of gay and lesbians be stripped from them.  Great. In effect, the court has just criminalized gayness.

However, the justices also ruled that the 18,000 same-sex marriages that took place in CA during the few short months of its legality (May-Nov. 2008) would remain valid.  As a gay friend (a pastor and fellow member of the Baptist Peace Fellowship) from CA emailed me:  This now creates a system in which some 18,000 gay couples in CA are in a situation analogous to that of free blacks in slave states before the U.S. Civil War–having rights denied to others “of their kind.”

This is not the last word.  Prop 8. supporters will work to get the marriages undone, too.  But  polling since last Nov. shows that Prop. 8 would probably fail (narrowly) if it were re-voted.   Marriage equality has gained ground since last Nov.  So, supporters of marriage equality will seek to undo Prop. 8 legislatively.  I think they will succeed, but if this is to stop going back and forth, I think CA may need a major constitutional overhaul which strengthens equal protections and makes it harder to strip rights from people.

This is one of the enduring tensions in the American form of government:  a democratic republic ordinarily means “majority rule.”  But the Framers of the Constitution also sought to protect the rights of minorities–to defend human rights and civil liberties against “majorities of the moment,” and “mob rule.”  Who and what is protected has been a debate for nearly 200 years, now.

May 26, 2009 - Posted by | civil liberties, courts, democracy, GLBT issues, homosexuality, human rights., Uncategorized


  1. I’m not sure how they managed this decision. The Amendment states the state would ONLY recognize marriage between and man and a woman. So they’re adding an exception to the amendment for the 18,000 already married.

    I imagine this might leave room for them to appeal the decision. But I don’t believe the Federal courts will hear a trial about a state’s constitution.

    Comment by Steven Kippel | May 29, 2009

  2. Actually, Steven, I hope you are right that the federal courts won’t hear an appeal. This case is being appealed, not by those who filed it, but by Ted Olsen, the lawyer in Bush v. Gore. I agree with the leaders of several lgbt groups that this could be disastrous for the marriage equality struggle. The SCOTUS is, even at its best–however we define “best”–, is not a “cutting edge” institution. With the current makeup of SCOTUS, such a case could lead to ALL the same-sex marriages in the nation being struck down. We need to keep working state-by-state.
    Too many lives are at stake for such grandstanding stunts.

    I still think the CA Supreme Court got this case wrong by not accepting the “revision” vs. “amendment” distinction since they had done so on other subjects that did not deal with people’s rights. I also think the argument that because one can remove voting rights from convicted felons one can also take away anyone’s rights at any time is VERY disturbing and deserves reversal. I just think taking it to SCOTUS at this time is dangerous for the whole movement.

    Comment by Michael Westmoreland-White | May 29, 2009

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