Calif. High Court Upholds Same-Sex Marriage Ban

     (CN) – In a hotly debated case, the California Supreme Court on Tuesday upheld a voter-approved ban on same-sex marriage, but allowed the estimated 18,000 gay couples who married before Proposition 8 took effect to remain legally wed.

     The justices voted 6-1 that Prop 8 constitutes a “permissible constitutional amendment, rather than a constitutional revision” and is valid “because it was proposed through the initiative process.”
     The case stirred controversy, not only because of the divisive subject matter, but also because it pitted the will of voters against constitutional protections against discrimination and unequal treatment.
     San Francisco officials began allowing same-sex marriages in 2004, but were quickly halted by the courts, which determined that city officials had exceeded their authority under state law.
     But in May 2008, the California Supreme Court voted 4-3 to strike down laws banning same-sex marriage, citing a fundamental “right to form a family relationship” under the state Constitution. The justices also rejected the claim that domestic partnerships and civil unions afford the same constitutionally protected rights as marriage.
     The high court’s ruling cleared the path for about 18,000 gay couples to wed in 2008, including celebrities Ellen DeGeneres and Portia de Rossi.
     Voters responded by amending the Constitution through Proposition 8, a November ballot measure defining marriage as a strictly heterosexual union.
     The measure passed with a 52-48 margin, prompting swift outcry from gay marriage advocates. Prop 8 opponents organized nationwide protests of the so-called “Prop H8.” Some gathered in front of buildings owned by the Church of Jesus Christ of Latter-day Saints, whose congregants were encouraged to support the ballot measure, which was officially sponsored by and endorsed by Sen. John McCain.
     The controversy led several advocacy groups, gay couples and the attorney general to challenge Prop 8 as an impermissible revision of the state Constitution.
     They asked the state high court to deem Prop 8 unconstitutional, to declare marriage an “inalienable” right that can’t be taken away without compelling justification, and to uphold the gay marriages performed before Prop 8’s passage.
     The majority first emphasized that Prop 8 did not “entirely repeal,” “abrogate” or “fundamentally alter” a gay person’s right to choose his or her own life partner and to enter into a committed, officially recognized family relationship. However, the justices rejected the court’s 2008 reasoning that a narrow, heterosexual definition of marriage violates the equal protection rights of gay couples, because civil unions and other partnerships do not carry the same clout as marriage.
     “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,” Chief Justice George wrote.
     “Petitioners … cannot point to any authority supporting their claim that under the California Constitution, a constitutional amendment – proposed and adopted by a majority of voters through the initiative process – cannot diminish in any respect the content of a state constitutional right as that right has been interpreted in a judicial decision.”
However, the majority refused to apply Prop 8 retroactively, instead declaring that all pre-Prop 8 gay marriages “remain valid in all respects.”
     Justices Kennard and Werdegar wrote concurring opinions.
     Dissenting Justice Moreno argued that voters should not be allowed to require discrimination through a constitutional amendment.
     “The rule the majority crafts today not only allows same-sex couples to be stripped of the right to marry that this court recognized … it places at risk the state constitutional rights of all disfavored minorities,” Moreno wrote. “It weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority.”

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