Marriage remains illegal for same-sex couples in California, save for about 18,000 of them who slipped under the wire last year.
In a ruling that gay-rights leaders called a "terrible blow," a "bitter pill to swallow" and a step "backward," the California Supreme Court on Tuesday ruled 6-1 in three consolidated cases to uphold Proposition 8, the November ballot measure that restricted marriage to heterosexual couples.
The state Constitution allows amendments, Chief Justice Ronald George wrote in the 136-page opinion, and Prop 8 voters "have not in any way impermissibly usurped a power allocated by the Constitution exclusively to the judiciary or some other entity or branch of government."
Prop 8 was put on the November ballot in response to the Supreme Court's 4-3 ruling last year in In re Marriage Cases, 43 Cal.4th 757, which found laws banning same-sex marriage to be unconstitutional. The measure passed with 52 percent of the vote, but not before approximately 36,000 gays and lesbians got married between June 20, when last year's landmark ruling became official, and Nov. 4, when Prop 8 passed.
Prop 8 proponents sought to invalidate those marriages retroactively, but the court refused.
Those couples, George held Tuesday, "acquired vested property rights as lawfully married spouses with respect to a wide range of subjects, including, among many others, employment benefits, interests in real property and inheritances. These couples' reliance upon this court's final decision in the Marriage Cases was entirely legitimate" and "must continue to be recognized in this state."
George also emphasized that Tuesday's ruling doesn't repeal or abrogate same-sex couples' constitutional rights of privacy and due process or fundamentally alter "the meaning and substance" of equal protection principles recognized in last year's same-sex marriage ruling and in laws allowing civil unions.
"Instead, the measure carves out a narrow and limited exception to the state constitutional rights," he wrote, "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 state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws."
Justice Carlos Moreno, who was among those favoring same-sex marriage last year, issued a dissent in which he castigated Tuesday's majority for weakening the state Constitution.
"The rule the majority crafts today not only allows same-sex couples to be stripped of their right to marry," Moreno wrote, "it places at risk the state constitutional rights of all disfavored minorities."
"Under the majority's reasoning," he continued later, "California's voters could permissibly amend the state Constitution to limit Catholics' right to freely exercise their religious beliefs, ... condition African-Americans' right to vote on their ownership of real property ... or strip women of the right to enter into or pursue a business or profession."
Justice Kathryn Mickle Werdegar, who also was in the majority last year, was likewise indignant, even though she agreed Tuesday that Prop 8 is valid.
"The history of our California Constitution belies any suggestion," she wrote, "that the drafters envisioned or would have approved a rule, such as that announced today, that affords governmental structure and organization more protection from casual amendment than civil liberties."
In a surprise move late Tuesday, attorneys Theodore Olson and David Boies, who opposed each other in Bush v. Gore, announced they're teaming up to mount a federal challenge to Prop 8. They filed a complaint (.pdf) on behalf of two couples in the Northern District of California on Friday, even before the Supreme Court's ruling, seeking preliminary and permanent injunctions to stop its enforcement. (The case, Perry v. Schwarzenegger, 09-2292, appears to have been assigned to Chief Judge Vaughn Walker.)
Tuesday's ruling in Strauss v. Horton, 09 C.D.O.S. 6281 , created chaos in San Francisco's Civic Center, with thousands of protesters on each side of the issue crowding the street and steps outside the Supreme Court building. Dozens of media vans vied for space with hundreds of police officers on foot, in vans or on motorcycles. At least three news helicopters hovered overhead.
In a nod to the charged nature of the case, the majority opinion said the justices were "setting aside our own personal beliefs and values" in reaching the decision.
George, nonetheless, expressed his thoughts about the initiative process -- which allows an amendment to become part of the state Constitution if approved by a simple majority of the voters -- by pointing out that while the United States Constitution has been amended only 27 times since 1788, the California Constitution has been amended more than 500 times since 1879.
And, George noted, two of the other 17 states that permit constitutional amendments by initiative -- Massachusetts and Mississippi -- "expressly prohibit" tampering with fundamental rights.
In upholding Prop 8, the Supreme Court shot down California Attorney General Jerry Brown's argument that the state's initiative process couldn't be used to extinguish fundamental rights without a compelling purpose. The court called that argument "fundamentally flawed" and held that "the 'inalienable' nature of a constitutional right never has been understood to preclude the adoption of a constitutional amendment that limits or restricts the scope or application of such a right."
The court also rejected arguments by other groups, including the National Center for Lesbian Rights and the San Francisco city attorney's office, that Prop 8 represented an impermissible "revision" to the state Constitution.
Opponents had argued that a "revision," as opposed to an "amendment," requires approval by a two-thirds majority vote of the state Legislature, and that Prop 8 qualified as a revision because it was an unprecedented attack on gays' and lesbians' fundamental right to marry.
The Supreme Court, however, agreed with Prop 8 proponents, who had argued that a revision has always been understood to constitute a major structural change in the workings of the government, not individual rights.
"From a qualitative viewpoint," George wrote, "it is obvious that Proposition 8 does not amount to a constitutional revision. The measure adds one 14-word section ... to article 1 [of the Constitution] -- a section that affects two other sections of article 1 ... by creating an exception to the privacy, due process and equal protection clauses."
"The numerous past decisions of this court that have addressed this issue," he added, "all have indicated that the type of measure that may constitute a revision of the California Constitution is one that makes 'far reaching changes in the nature of our basic governmental plan .'"
Tuesday's ruling likely ends state court litigation that has raged since the city of San Francisco began marrying same-sex couples in February 2004. That led to a state Supreme Court ruling invalidating those marriages on the grounds the city had overstepped its authority.
Subsequently, the city and other groups filed suit in San Francisco Superior Court to challenge laws that limited marriage to heterosexual couples. A trial court judge ruled in their favor, but the San Francisco-based 1st District Court of Appeal reversed in a 2-1 decision in 2006.
In reversing the 1st District last year, the Supreme Court held that the state Constitution "properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples." That ruling invalidated Proposition 22 -- a 2000 ballot initiative that had amended state statutes to limit marriage to a man and a woman -- and made California the second state after Massachusetts to OK same-sex marriage.
All that changed with the passage of Prop 8. But since Prop 8 passed, the tide in other states has begun flowing in favor of same-sex marriages. Connecticut, Iowa, Maine and Vermont now recognize same-sex marriages either through Supreme Court rulings or legislative enactments.
Prop 8 proponents hailed Tuesday's ruling, calling it a victory for traditional marriage and the initiative process.
"Many voters become disillusioned with the process when we enact laws at the ballot box and then they're challenged in court and judges overturn them," Folsom lawyer Andrew Pugno, co-counsel on the Yes on 8 Campaign, said at a news conference in Sacramento on Tuesday. "This decision wasn't just about restoring traditional marriage, but also whether or not the people were going to have the final say on an important issue like this."
Kathryn Kendell, executive director of NCLR, said the Supreme Court had "diminished its legacy as a champion of equality."
"The court's decision," she added in a prepared statement, "has undermined the central principle that all people are entitled to equal rights and has jeopardized every minority group in California. No minority group should have to defend its rights to equality at the ballot."
As for the 18,000 same-sex couples whose marriages were upheld, Kendell called them "ambassadors" for the fight for equality, and three professors at UC-Berkeley School of Law opined that they will enjoy the unique position of being regarded the same as heterosexual couples.
Even Pugno said that while the Supreme Court might have created a "thorny issue" by placing a protective bubble around the 18,000 couples, his group doesn't plan to pursue further action.
"We have absolutely no interest in meddling in a recognition that the Supreme Court has said particular couples are entitled to have," he said. "There's no reason for that."