On Tuesday the California Supreme Court voted to uphold the ban on same-sex marriage approved in November of last year by a referendum of California voters on Proposition 8. Softening the blow slightly, they ruled that about 18,000 gay couples who were married before the law took effect will remain legally married.
The 6 to 1 court decision came in response to a number of lawsuits which were based around the assertion that the ban on gay marriage violated the equal protection clause of the state constitution and was invalid because it was not approved by the legislature before being submitted to a referendum.
When the Supreme Court legalized gay marriage in May of 2008, it ruled that denying same-sex couples the right to be married was state-sanctioned discrimination, but apparently that discrimination is acceptable when it comes at the decision of a majority of the voters rather than the state legislature.
The announcement triggered widespread protests and marches, signalling a renewed effort to change California’s law on gay marriage, though without the support of the courts it may be difficult to reverse the results of the Proposition 8 referendum.
In the time since Proposition 8 passed, three other states (Iowa, Vermont and Maine) have joined Massachusetts and Connecticut in legalizing same-sex marriage and more states seem likely to follow this trend before the year is out.
This situation highlights the problems with California’s initiative and referendum system which can permit the effective tyranny of the majority over the rights of minority groups, and has also played a role in California’s critical budget crisis by placing unmanagable financial obligations on the state. It also creates a bizarre system of legal inequality where gay marriage is illegal for most Californians, but remains legal for the 18,000 same-sex couples who are already married. This anomalous situation guarantees further court challenges and renewed efforts to reverse the ban, most likely through the ballot initiative process to pass a new amendment to the California constitution to reverse Proposition 8.
Pastor Chris Clark of the East Clairemont Southern Baptist Church in San Diego who was part of a coalition of ministers working against gay marriage rights, said: “This is a government of the people, by the people and for the people, and when the people feel that there’s a branch of government that is not representing them properly, it is their right and responsibility to take it back and let their voice be heard.”