Home / Culture and Society / The California Supreme Court Properly Decided the Case Involving Homosexual Marriage

The California Supreme Court Properly Decided the Case Involving Homosexual Marriage

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One of my former law partners was fond of saying, "We can argue about it or we can look it up." That notion applies to an evaluation of the California Supreme Court decision on Proposition 8: it is quite useful, in evaluating any court decision, to read or otherwise become reasonably familiar with what the court actually said.

There has recently been lots of discussion — ostensibly related to the California case — about whether homosexual marriage is a good or a bad thing. For whatever,  if anything, my opinion is worth, that sort of discussion serves a useful purpose, even if it has very little to do with the court case under discussion. There has been rather less discussion about California's Constitutional procedures, under which some ballot propositions may lawfully change the California Constitution and under which others may not. I think such discussion is also salutary, particularly in the context of the California case.

Here, the California Supreme Court was not faced with any questions about the goodness or badness of homosexual marriage; nor was it called upon to decide whether the procedures for Constitutional changes mandated by the California Constitution are good or bad. It had only one real question to resolve:

When Proposition 8 added Section 7.5 to the California Constitution providing that "Only marriage between a man and a woman is valid or recognized in California" did the measure, by virtue of the manner in which it was adopted, "constitute . . . a Constitutionally permissible change to the California Constitution."

The California Supreme Court did not attempt to offer opinions about whether marriage other than between a man and a woman is good or bad, socially acceptable, should be socially acceptable or anything else of that sort. Nor did the Court even remotely approach this possibly interesting question: Despite the new Constitutional provision, would California recognize a marriage between a gay man and a lesbian woman? Even if publicly and openly homosexual, they would still be a man and a woman. The issue was not presented, and there was little if any reason for the Court to consider it, if for no other reason than that the answer is obvious: such a union would be considered a marriage.

The Court said,

First, as explained in the Marriage Cases . . . 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. Regardless of our views as individuals on this question of policy, we recognize as judges and as a court our responsibility to confine our consideration to a determination of the constitutional validity and legal effect of the measure in question. 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.


[T]he principal issue before us concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process so as to incorporate such a limitation as an explicit section of the state Constitution. . . . [The California Constitution] provides that once an amendment is proposed by either [of two defined] means, the amendment becomes part of the state Constitution if it is approved by a simple majority of the voters who cast votes on the measure at a statewide election. (Id., art. XVIII, § 4.)*

Previously, the California Supreme Court had invalidated a statute adopted by referendum. That statute purported to create a California statute defining marriage as only between a man and a woman; it did not purport to change the California Constitution, into which the Court had imported a right to marriage. Since the statute was inconsistent with the California Constitution as interpreted, the Court invalidated the statute. Proposition 8, unlike the earlier proposition, involved an amendment to the California Constitution. Like it or not, the difference is critical under California law; that may seem silly or perverse, but unless the procedures for amending the California Constitution are changed — not by the Court but via the procedures provided for by the California Constitution itself — that's where matters now stand and must stand.

All or most of the Californians who voted in favor of Proposition 8 may have been simple minded, bigoted perverts who hate homosexuals with a burning passion and were seized with an uncontrollable desire to harm them because to do so would enhance their own feelings of moral superiority. Interesting thoughts, perhaps, and arguably of some sociological significance; totally irrelevant, however, in the context in which the California Court rendered its decision.

There was no question whether an "amendment" had been properly proposed in Proposition 8. Hence, the question before the Court was whether it was actually an "amendment" as it purported to be or, instead, a "revision." Proposition 8, by virtue of the manner of its adoption, could "amend," but not "revise" the Constitution; the procedures for "revision" of the California Constitution are far more onerous than for a mere "amendment." (As noted by the Court, the California Constitution, ratified in 1879, has been amended more than five hundred times; the U.S. Constitution, ratified in 1788, has been amended only twenty-seven times. One likely reason for this is that the California Constitution is far easier to amend than is the U.S. Constitution.)

The amendment — revision distinction, perhaps unique to California, goes far beyond mere semantics, and there was little if any valid basis for ruling other than as the Court did: that Proposition 8 involved merely an "amendment." Reviewing years of history and of judicial precedent, it was clear to the Court that an "amendment" is something which does not fundamentally change the form of Government; a "revision" is something which does. Under the Court's history and precedent-based analysis, it was clear that a definition characterizing some but fewer than all unions as "marriage" did not fundamentally change California's form of Government.

No questions of whether the California Constitution's provisions for changing it are silly or should be revised were before the Court. The Court had no authority to answer such questions, because it was bound by the California Constitution, and had no basis for considering such matters. Judges are not appointed to be philosopher kings, with the task of ruling a State or country as they wish; instead, they have quite circumscribed functions; they must not attempt to usurp the functions of the Legislative or Executive branches, or (as here) of the people, obnoxious though they may well be.

This case is significant in connection with the confirmation of Judge Sotomayor as a United States Supreme Court justice. I strongly suspect, but obviously do not know, that were Judge Sotomayor a California voter, she would have voted against Proposition 8. I also strongly suspect that, had she been a member of the California Supreme Court, she would have joined in upholding the Constitutional amendment embodied in Proposition 8, and that she would have done so regardless of her personal feelings about the rights of homosexuals. It is quite possible to to be strongly opposed to a law, as stupid or unfair, while simultaneously deeming it Constitutional. The ability of a judge to uphold a law which he finds personally obnoxious, or to strike down one even though he finds it pleasing, is highly important to our system of law. For a judge to put his personal feelings above his judicial obligations is anathema.

The California Supreme Court did not attempt to resolve any questions under the United States Constitution; such questions were not before it, and it could not have provided the ultimate answers in any event. I very strongly suspect that the U.S. Supreme Court will eventually have to decide these questions. At first glance, they probably include:

What might be the impact of the full faith and credit provisions of the U.S. Constitution, under which each State must generally give full faith and credit to the lawful actions of every other state? Is a marriage between (or among) homosexuals, recognized in Massachusetts, required to be recognized in California? Under the California Court's decision and the California Constitution as amended, it is not to be recognized.

Is any Federal right, properly applicable to actions by States under the Fourteenth Amendment, impermissibly abridged by the California Constitution as amended? This is a real bear of a question, and possibly raises the question of whether the Federal Government must itself recognize homosexual marriages for tax, social security and other purposes. Must it do so at all, or only for residents of States where homosexual marriage are recognized? Or must it do so for all homosexual unions, regardless of State recognition, to prevent an unconstitutional inequality as between its treatments of some "marriages" and others? These are questions looking for an answer.

There are probably other related questions which the U.S. Supreme Court will eventually be called upon to consider.

*A substantial majority of the California Supreme Court agreed with the decision, each in his own words and each in his own way. Chief Justice George wrote the Court's opinion. Justices Kennard, Baxter, Chin and Corrigan filed separate concurrences, without offering any words explaining why they did so or in what respect(s) they may have disagreed with the Opinion. Justices Kennard and Werdegar filed separate concurrences disagreeing with some of the reasoning in Justice George's opinion, but agreeing with the result. Judge Moreno filed a concurring and dissenting opinion, disagreeing with most of the Court's reasoning and, except in one respect, with the result. Hence, there were six justices in the majority, and one not. In the Court's earlier marriage case, finding that the statute adopted through the referendum process violated the California Constitution as it then existed, Chief Justice George wrote the Court's opinion, in which Justices Kennard, Werdegar and Moreno concurred. Justice Baxter concurred part and dissented in part, along with Justices Chin. Justice Corrigan dissented in major respects.

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About Dan Miller

  • Doc,

    The California Supreme Court went to great lengths in its earlier marriage decision, and in its recent Proposition 8 decision, to explain that, under California law, there are no substantive differences under California law in the way that people in civil unions and people in marriages are to be treated. To the extent that some people feel uncomfortable with civil unions between homosexuals or, for that matter between heterosexuals, it is my understanding that, even in California, personal preferences of that sort are not properly cognizable. Were I so inclined (again, even in California), I suppose that I could shun people in civil unions and decline to invite them to dinner; that would be my problem, not a problem with which any court should be faced.


    I suspect they do. To the extent that hospital policy treats differently people who are required be treated the same, I suspect there may be legal remedies. To the extent that hospital employees in their official capacities, regardless of hospital policy, do so, I suspect that there may also be legal remedies. However, to the extent that individuals, in their individual capacities, do so, I very much doubt that there are legal remedies; I also doubt that such individuals would behave differently if Proposition 8 had been defeated.


  • The question mark was erratum.

  • There is evidence that the culture at large (medical settings like hospitals for one example) treats both the partners in a gay dyad and their children differently because they are not married. ?

  • Bliffle

    IMO, if there were a material difference between a gay “union” and hetero marriage there would be a case under the 14th amendment.

  • Dan,

    I don’t know if the Court’s explanation washes with you, but it doesn’t with me. Such is the ease with which the California Constitution can be buggered about with, though, that it wouldn’t surprise me if they were attempting to pre-empt further legal challenges along those lines.

    For example, when the death penalty was suspended in California based on the state’s ‘cruel and unusual’ clause, the Constitution was simply amended to say that the death penalty did not constitute cruel and unusual punishment.

    Along similar lines, I suspect that if the Court had decided that Prop 8 violated the equal protection clause, the anti-gay marriage lobby’s response would have been to try and get an amendment passed to the effect that restricting marriage to man/woman did not violate the equal protection clause.

  • Bliffle,

    That’s the way I see it, insofar as California is concerned.

    As noted in the article, the Court was not in a position to evaluate the impact under Federal law; as to that, it seems cleaner and neater — not to mention more fair — for the Feds to provide the same tax, social security and other benefits to all legally recognized unions comparable in substance to “marriage” and, where Federal laws require non-Federal entities to provide benefits based on the “marriage” designation, to require them as well for all legally recognized unions comparable in substance to “marriage.”

    Personally, I would prefer that single and “married” folks be treated the same; I don’t understand why people who have been “shacking up” on a long term basis should be denied whatever benefits are provided to people who are “married.” That, however, is a different kettle of fish.


  • Thanks for this, Dan. My moral and ethical outrage over the initial passing of the bill blinded me to the real legal question that you eloquently laid out for us here. Maybe the law really does work.

  • bliffle

    Very good. So it seems that all that is at stake here is the use of a word, ‘marriage’, in ways that have no effect on the legal standings of couples. So prop 8 has no real legal material impact.

    Is that right?

  • Doc, Article I, Section 7b of the California Constitution provides:

    (b) A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens. Privileges or immunities granted by the Legislature may be altered or revoked.

    The California Supreme Court noted that by virtue of Proposition 8, a new Section 7.5 had been added to Article I, providing, Only marriage between a man and a woman is valid or recognized in California. It noted that all substantive rights incident to marriage remain available to couples whose civil unions are not honored by that designation, and that arguments to the effect that other parts of Article I, Section 7 were thereby violated rest upon

    an overstatement of the effect of Proposition 8 on both the fundamental constitutional right of privacy guaranteed by article I, section 1, and on the due process and equal protection guarantees of article I, section 7. . . . Proposition 8 does not abrogate any of these state constitutional rights, but instead carves out a narrow exception applicable only to access to the designation of the term “marriage,” but not to any other of “the core set of basic substantive legal rights and attributes traditionally associated with marriage. . . .” (Marriage Cases, supra, 43 Cal.4th at p. 781), such as the right to establish an officially recognized and protected family relationship with the person of one’s choice and to raise children within that family.

    The Court went on at great (probably excessive) length and somewhat repetitively, to explain that

    By its terms, the new provision refers only to “marriage” and does not address the right to establish an officially recognized family relationship, which may bear a name or designation other than “marriage.” Accordingly, although the wording of the new constitutional provision reasonably is understood as limiting use of the designation of “marriage” under California law to opposite-sex couples, and thereby modifying the decision in the Marriage Cases, supra, 43 Cal.4th 757, insofar as the majority opinion in that case holds that limiting the designation of “marriage” to the relationship entered into by opposite-sex couples constitutes an impermissible impingement upon the state constitutional rights of privacy and due process, the language of article I, section 7.5, on its face, does not purport to alter or affect the more general holding in the Marriage Cases that same-sex couples, as well as opposite-sex couples, enjoy the constitutional right, under the privacy and due process clauses of the California Constitution, to establish an officially recognized family relationship.

    Because, as a general matter, the repeal of constitutional provisions by implication is disfavored (see, e.g., In re Thiery S. (1979) 19 Cal.3d 727, 744; Warne v. Harkness (1963) 60 Cal.2d 579, 587-588), Proposition 8 reasonably must be interpreted in a limited fashion as eliminating only the right of same-sex couples to equal access to the designation of marriage, and as not otherwise affecting the constitutional right of those couples to establish an officially recognized family relationship.

    While repetitive and technical, this discussion does away with the principal objection I had previously expressed in my earlier (linked) article to the effect that there could be unforeseen consequences of the prior Marriage Cases decision, possibly subjecting to legal sanction clergy unwilling, due to their religious beliefs, to perform “marriages” between two men or two women.

    Since the U.S. Supreme Court quite generally refrains from substituting its views on the meaning of state constitutions and other laws for those of the state courts, it seems highly unlikely that the U.S. Supreme Court will have anything to say about this aspect of the decision.


  • Bliffle

    Excellent article, Dan(Miller). Well thought out and clearly presented. Should be easily understood by anyone.

    I was pleased to see, in the final paragraphs, your concerns about Amendment 14 consequences and other legal implications, which were better explications than my own thoughts on those subjects.

  • Clavos

    Be interested to read your personal take on some of the cans of legal worms (I mean, of course, the potential Supreme Court cases, not lawyers) you mention at the conclusion of your article.

    Doc, a couple of weeks ago you noted that I am “incorrigible.”

    Right back atcha. :>)

  • Sound opinion, Dan, as always when you examine the US legal system for the benefit of us plebs.

    Be interested to read your personal take on some of the cans of legal worms (I mean, of course, the potential Supreme Court cases, not lawyers) you mention at the conclusion of your article.

    Also, what’s your opinion of the argument that the amendment approved as a result of Prop 8 itself violates Article I, Section 7(b) of the State Constitution?