With the California Supreme Court set to rule on the validity of Proposition 8 sometime over the next 30 days, it seems like a good time to make a prediction.
On November 4, 2008 Californians voted for Proposition 8 by a margin of 52%. The text of the proposition purportedly amended the California Constitution to include the 14 words that 'Only marriage between a man and a woman is valid or recognized in California.' Religious conservatives claimed that the proposition reinforced the traditional values while civil rights activists claimed it was and unconscionable assault on the rights of gays and lesbians.
The amendment is currently in a state of limbo, with the California Supreme Court expected to rule on it's validity somewhere between now and June 3, 2009. As a bit of history, in May of 2008, before the introduction of this proposition, the California Supreme Court had ruled in re: Marriage Cases, that the California Constitution required marriage equality and had allowed gays and lesbians to marry. Their ruling noted that the equal protection clause of the constitution required that marriage laws be applied evenly to everyone regardless of sexual orientation. It was at that time that they struck similar wording from the civil laws that restricted marriage to opposite sex couples. As of today, gays and lesbians no longer have the right to marry in the state of California and the status of over 18,000 couples, that were wed when same sex marriage was legal, is uncertain.
If the California Supreme Court rules that the amendment is an unconstitutional revision, the text will be removed from the state constitution, and gays and lesbians will once again be able to marry based on the prior supreme court ruling.
But what happens if the amendment is upheld as a valid change to the constitution? Will gays and lesbians be barred from the rights of marriage in the state, and once again be subject to the limited rights available under the existing 'Domestic Partnership" laws? Will Prop 8 invalidate the existing marriages?
My prediction is that the California Supreme Court is likely to uphold the measure. During the oral arguments that were held back in March, it appeared certain that the justices were not ready to invalidate the proposition. While the petitioners painted the effects of the initiative as an assault on the rights of gays and lesbians, the proponents of prop 8 painted a more limited view. It was clear that the justices saw a more limited view of the effects of the amendment and therefore, did not see it as revision of the constitution. In such an event, it is likely that the existing marriage laws will be struck in their entirety from the our civil code and replaced with another term. An unlikely event? Consider the following:
1. Revision It Is Not: If the California Supreme Court holds that Proposition 8 is a simple amendment instead of a revision, it will need to act like an amendment. Therefore, it can not make major changes to the constitution. Since equal protection of the laws is a central tenet in the California Constitution, those protections would necessarily need to remain intact. The proposition would not be able to be interpreted as an exemption of equal protection for gays and lesbians.
2. Proposition 8 Simply Defines a Term: In oral arguments before the California Supreme Court, the proponents of proposition 8 claimed that it did not affect any rights of gays and lesbians, and that the proposition merely defined that marriage was to remain between a man and a woman. Proposition 8 doesn't require that the state sanction 'marriage' or instruct the legislature that marriage laws must only include a man and a wife. This is particularly important. When ruling on the effect of a constitutional phrase, it is interpreted narrowly when it limits rights or freedoms.
3. Suspect Class: In it's decision in re: Marriage Cases, the California Supreme Court determined that gays and lesbians are a suspect class. This means that they have historically been the subject of discrimination and do not have sufficient political power to address the discrimination. In application, this finding requires that all laws which limit the rights of gays and lesbians are assumed to be discriminatory and are reviewed using 'strict scrutiny.' Less than 30% of laws that are reviewed using strict scrutiny standards withstand that test. This is a very important and unique finding. Since Proposition 8 was written prior to the decision, it could simply not have anticipated or addressed this issue.
4. Separate is not Equal: In re: Marriage Cases, the California Supreme Court had ruled that there was no compelling interest for the state in establishing a separate designation for gays and lesbians (domestic partnership) even if the rights established were exactly the same. They note that denying gays and lesbians the respect and dignity of a common designation, caused appreciable harm to gays and lesbians and relegated them to 'second class citizens.' The supreme court even noted that upon determining that the marriage laws were discriminatory, they had two options; either extend the rights of marriage to gays and lesbians, or strike the marriage laws in their entirety.
If Proposition 8 is upheld, it necessarily will require that the laws relating to marriage be reevaluated against the constitution once again. The court has already determined that marriage laws that excluded gays and lesbians would not withstand strict scrutiny review. Since the people have now eliminated the option of extending those laws to gay and lesbian couples, the court will be left with only one other option - to eliminate discriminatory marriage laws in their entirety.
It is possible that the California Supreme court could instruct the legislature to remove the term marriage and come up with some alternative designation that can be applied equally. That would mean that marriage rights would be eliminated in the state and replaced with 'civil unions' or some other designation that would apply to both straight and gay couples. This is not the outcome that was envisioned by the citizens of California, but is perhaps the most likely result when, as Prop 8 attorney noted, the 'people rule themselves unwisely.'