WaPo on California's highest court ruling on Proposition 8

Proposition 8 Stands
California's highest court rules that the voters have the right to be wrong.
WaPo, Wednesday, May 27, 2009

THE JUDGES of the California Supreme Court ruled yesterday that they can be overruled by the people of their state. That's the import of their 6 to 1 decision upholding Proposition 8, which bars same-sex marriage. They're probably right on the law, but the outcome is wrong as a matter of fairness, and our guess is that the people of California will reconsider before too long.

This same court ruled in May 2008 that the state's constitution required recognition of same-sex marriage. In November, voters narrowly repudiated that decision by approving Proposition 8, which amended the constitution to provide that "only marriage between a man and a woman is valid or recognized in California."

Yesterday, three of the four justices who had originally ruled in favor of same-sex marriage nonetheless agreed with the three dissenters in the original case that Proposition 8 should stand. This outcome suggests that those challenging the legality of Proposition 8 had the weaker legal case, however wrongheaded the amendment's content. As the court found, those challenging the proposition, including private plaintiffs and state Attorney General Jerry Brown, essentially complained "that it is just too easy to amend the California Constitution through the initiative process." That's probably true, but, as the court noted, the people of California are free to adopt a flawed system.

In the course of voting to uphold Proposition 8, the court made important -- and just -- findings. First, it found that the marriages of the 18,000 same-sex couples who acted before the proposition was approved remain valid. Second, it emphasized that other same-sex couples still enjoy the right to civil unions, allowing gays and lesbians 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." Rather, said Chief Justice Ronald M. George, 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" rights. In other words, the terminology is different for same-sex couples, but the rights remain the same as those of other married couples.

This is disappointing; words do matter. Yet we remain confident that the inexorable trend of history is to recognize equality for gay men and lesbians, allowing them to marry rather than relegating them to a separate-but-equal legal status. The recent moves in Vermont, Maine and Iowa in support of same-sex marriage, and efforts in that direction in New Hampshire, should offer some comfort to the disappointed citizens of California, gay and straight alike, that their state will before long undo this unfortunate proposition.