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No Regrets on Prop 8, Calif. Chief Justice Says
The Recorder
June 30, 2009
As much as he might have liked to see his landmark ruling favoring same-sex marriage stand, California Chief Justice Ronald George knew he was doing the "right thing" when he upheld Proposition 8 late last month.
"It was so clear to me that was the only right thing to do," he said in an interview Friday. "I've been on the bench for 37 years and have had to let the law take me where it had to, regardless of my own personal views."
George gave his thoughts on the Prop 8 ruling -- Strauss v. Horton, 09 C.D.O.S. 6281 -- during a 75-minute interview with The Recorder in his San Francisco chambers. He agreed to talk only because the ruling had become official on Thursday.
The chief justice spoke about his reasoning, the reaction it produced, and noted repeatedly that the public has the option of returning to the ballot box, if it wishes. He dismissed questions about how the same-sex marriage cases will affect his legacy.
"I'm not seeking out any legacy," George said. "I'm just doing my one-seventh share of the opinions."
George said he has received a fair share of what he called "fan mail" -- "some less polite than others" -- from individuals upset with the ruling, and he understands that some believe he betrayed their trust.
But he said he sees no inconsistency between last year's ruling in In re Marriage Cases, 43 Cal.4th 757, and Strauss.
"In the marriage cases, I felt the court honored its obligation to apply the limitations that the people had placed upon their own legislative authority by enacting our state Constitution," George said. "And in the Prop 8 case, the court was honoring its obligation to uphold the people's will as expressed in their desire to amend the Constitution."
He said it was "very clear" to him that the people "have reserved their right to amend the Constitution" and noted that the Supreme Court has "upheld that authority even when it resulted in the diminution of rights."
Last fall George could receive a standing ovation just for walking into a room at the State Bar convention. Asked if people's attitudes toward him have changed in recent weeks, he said no. "It's true both on a professional and a personal level," he said. "I have friends in the gay community as well, and most seem to understand that the court was compelled to rule the way it did."
George noted that some newspapers had editorialized about the court not having the courage to "do the right thing" and felt that wasn't a valid criticism.
"Being results-oriented, in my view, is not an act of courage," he said. "It takes more courage to uphold the setting aside of what the court had done before."
The chief justice said he believes many people -- including some editorial boards -- didn't understand that there were distinctly different issues in the marriage cases and the Prop 8 case. Hoping for a result that wasn't based on the court's interpretation of the law, he said, "displays a basic misunderstanding of the judiciary."
"If they feel they would benefit from results-oriented jurisprudence," he pointed out, "they stand an equal chance of having that kind of jurisprudence turning against them" in future cases.
As he did during oral arguments in March, George noted that the California Constitution is fairly easy to amend, needing only a majority plus one vote. While the U.S. Constitution has only been amended 27 times since it was ratified in 1788, he said, California's Constitution has been amended more than 500 times since it was ratified in 1879.
"All I can say for those who feel [betrayed]," George said, "is to make it more difficult to amend the Constitution, at least in regard to the diminution of the rights of individuals and groups."
George wouldn't comment on his personal thoughts about the passage of Prop 8 because of concerns that the issue isn't dead yet and might work its way back to the court someday. (Signatures are currently being gathered to put the issue back on the ballot in 2010.)
"Not to sound facetious," he added, "one reaction [to Prop 8] was, 'Well, here we go again with another high-profile case that we will feel obliged to resolve.'"
George's court has been entwined in the same-sex marriage issue since 2004 when its ruling in Lockyer v. City and County of San Francisco, 33 Cal.4th 1055, held that the city had overstepped its authority by issuing marriage licenses to gay and lesbian couples.
George said he thinks the trilogy of cases has presented a civics lesson in the branches of government, with Lockyer proving the limits on executive power, In re Marriages the limits of the legislative branch and Strauss the limits on judicial power.
He said it's up to history to judge him and his court on the issues raised in all three.
"I feel on all three I wouldn't have been capable of doing a better job," George said, "but it's up to others how that falls into the progression of our jurisprudence."
Was he getting weary of the issue?
"No," he said. "But if we had one or two of these every year, it might be a different story. I wouldn't want a full calendar of this kind of stuff. It's nice to have a mixture of blockbusters and more garden-variety cases, to the extent anything is garden variety at the California Supreme Court."
