Tuesday, May 26, 2009

Excerpts from Cali Prop 8 Court Ruling (Strauss v Horton)

It’s interesting that there is so much flying around the media, online and in blogs about the just issued ruling on California Proposition 8 Case. The decision in Strauss v. Horton (the Prop 8 Case) was 136 pages long with 40 pages of concurring opinions and 1 dissenting opinion.

So what exactly did California’s Supreme Court say? As is so often the case, the actual opinion isn’t as horrific as those on either side of the issue might suspect. The Court was pretty narrow in its opinion.

According to the Court:
“the 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.”

The argument which was presented to the California Supreme Court was whether the issue in Proposition 8 (that a marriage as defined in California is between a man and a woman) was an amendment to the Constitution or a revision of the Constitution.

It was a narrow case as such cases by their nature tend to be. It was the best chance that the appellants believed they had to challenge the restrictions of the successful Prop. 8 election.

According to the Court’s decision:
“At the same time, as numerous decisions of this court have explained, although the initiative process may be used to propose and adopt amendments to the California Constitution, under its governing provisions that process may not be used to revise the state Constitution”

“Petitioners’ principal argument rests on the claim that Proposition 8 should be viewed as a constitutional revision rather than as a constitutional amendment, and that this change in the state Constitution therefore could not lawfully be adopted through the initiative process.”

“…in resolving the amendment/revision question, a court carefully must assess (1) the meaning and scope of the constitutional change at issue, and (2) the effect — both quantitative and qualitative — that the constitutional change will have on the basic governmental plan or framework embodied in the preexisting provisions of the California Constitution.”

“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 — 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.”

Ultimately the Court has concluded the following:
“… we conclude Proposition 8 constitutes a constitutional amendment rather than a constitutional revision. As a quantitative matter, petitioners concede that Proposition 8 — which adds but a single, simple section to the Constitution — does not constitute a revision. As a qualitative matter, the act of limiting access to the designation of marriage to opposite-sex couples does not have a substantial or, indeed, even a minimal effect on the governmental plan or framework of California that existed prior to the amendment. Contrary to petitioners’ claim in this regard…”
“We agree with petitioners that the state constitutional right to equal protection of the laws unquestionably represents a long-standing and fundamental constitutional principle (a constitutional principle that, as we already have explained, has not generally been repealed or eliminated by Proposition 8)”.

OK, so now we have the benefit of the Court’s rationale on this issue. By ruling that Prop 8 was an amendment rather than a revision, there is almost no way the Court could have agreed with the appellant because that was the crux of the argument made against Prop 8 in the Court filing.

However, the rationale that the strictures of Prop 8 does not entirely repeal or abrogate a same-sex couple’s state constitutional right of privacy and due process strikes me as a stretch and potentially grounds for future appeal. In my limited knowledge, this strikes me as somewhat akin to “separate but equal” which Brown v Board of Education long ago found to be anything but equal.

For now, I would think that, based upon the wording of this ruling, advocates for benefits for same-sex couples can and should use it to make sure that all of the rights held by “married” couples are assured and guaranteed to same-sex couples. That seems to me to be a clearly worded element of this decision.

I haven't spent much time actually analyzing this ruling or doing a cross reference back to what the Court called the "Marriage Cases". It's also too bad that the media hasn't yet gone through the decision and reported on what indeed the Court said rather than just to say that Prop 8 was upheld. Maybe the media actually wanted all hell to break loose because it makes for better cable news and front page fodder than does a careful reporting of the actual decision.

Hopefully, we can use these actual words of California’s Supreme Court for more informed discussion and debate upon this important ruling and issue.

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