“When I’m wrong, I say I’m wrong” -from the movie “Dirty Dancing,” when Jerry Orbach, “Baby’s” (Jennifer Gray) father, apologizes to Patrick Swayze for having falsely accused him.
In the excitement after the election last November, right here on the pages of F&HD, on November 7, 2008, I wrongly called the outcome of Prop 8’s passage when it would eventually face future Constitutional challenge before the California Supreme Court.
When that day arrived Tuesday, the California Supreme Court by a 6-1 vote upheld the Constitutionality of Prop 8, the same-sex marriage ban enacted by California voters last Fall. Prop 8 thus lives on to fight another day; at least until another election when there will undoubtedly be another ballot initiative for California voters to mull over, debate about, and supply the Media Talking Heads with wall to wall material to push this amazing cultural power struggle right out there on center stage again.
Interestingly, the national mood may actually have shifted to become more liberal in allowing for same-sex marriage during the ensuing 6 months, as we have seen a number of states in the Northeast, joined by Ohio, of all places, who have legalized same-sex marriage. Polls seem to show (although there is always room for highly spirited debate on this topic) that the national mood may be a bit more understanding and sympathetic to this issue than it was last November.
In the wake of Tuesday’s 6-1 decision, we find many curious anomalies. Not the least of these strange results is that there now exists a most unusual, new, unique, and perhaps never-to-be-repeated, class of California citizens – those who entered into same-sex marriages during the 7-8 months elapsing after the California Supreme Court announced its decision in In re Marriage Cases in the Spring of 2008, (holding that outlawing same-sex marriage was a denial of privacy and due process guarantees in the California Constitution while in the pre-Prop 8 universe) but, before early November 2008, when Prop 8 was passed. There are, as estimated the Court in its opinion, some 18,000 such same-sex marriages entered into during this brief, maybe once-in-a-lifetime window – 36,000 individuals affected, in total.
You can download and read the entire California Supreme Court opinion in pdf format by clicking here – I am sure it will be available at many other websites over the next couple of days as lawyers and activists of every persuasion pore over it attempting to understand the between-the-lines nuances of the Court’s reasoning. The pdf of the opinion is 185 pages in length, so make time for a long, intensive reading session.
The opinion begins with caveats and disclaimers, some of which sound almost apologetic, like this one: “our 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” (italics in original), and a bit later, this: “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.”
The Supreme Court also noted that this is now the third case in the last several years to deal with same-sex marriage, the trilogy of cases now being: first, Lockyear v. San Francisc,o which held that San Francisco clerks erred in issuing marriage licenses to same sex couples without there first being an appellate case holding that, limiting marriage to only a man and a woman, was unconstitutional; second, In re Marriage Cases, holding it was unconstitutional to outlaw same-sex marriage as a denial of privacy and due process provisions of the California Constitution, and now this third one, Strauss v Horton, upholding the constitutionality of Prop 8, the very simply worded amendment to the California Constitution, adding a new section — section 7.5 —to article I of the California Constitution, providing: “Only marriage between a man and a woman is valid or recognized in California.”
Likely, more money was spent per word, both by proponents and opponents of the measure, than on any of the other 500-odd California Constitutional amendments in our history of tinkering with our perhaps too-much-tinkered-with state constitution.
I took issue in my piece last November with the idea that, in the Spring of 2008, it could be unconstitutional in violation of state constitutional guarantees of privacy and due process to deny the right of same-sex couples to marry, but that, in an election held in the Fall of 2008, by which the “People” of California amended the state’s constitution (as one of maybe 500 such state constitutional amendments in total – not a particularly hard thing to do in this state!) by a bare majority vote, a few points over 50%, to make the same same-sex marriage illegal – unless, of course, you married in the ‘magic’ intervening months.
In my view, the real disconnect here, and one left unremedied by this lengthy opinion, is that a bare majority of Californians can vote to disenfranchise a minority of Californians of constitutional rights guaranteed by our state’s constitution as so held by the California Supreme Court in very recent and quite clearly stated case authority. This shouldn’t be the kind of thing we can do by a majority vote or, indeed, by any vote of the People, as for but one example, my right to partake of freedom of the press and to read any book that I want under free speech constitutional guarantees should not be voted on by a majority who find my taste in reading to be boring, or seditious.