For those of us living under a rock, or out in that unseasonable sunny summer weather here in Ireland (myself included), last week’s ruling by the California Supreme Court may have slipped by unnoticed.

The court’s decision effectively means that the vote by the simple majority to pass Proposition 8 still stands. (That simple majority, by the way, was 52.24% – hardly resounding.) Proposition 8 inserts a new provision into the Californian constitution, stating that marriage can only between a man and a woman. It reads:

Only marriage between a man and a woman is valid or recognized in California.

Some have been outraged at the court’s decision; some have taken a stoical view along the lines that the ruling was technical and that the court’s hands were tied.

Reading the decision, however, I’m not so sure I ultimately agree with the latter view. The ruling is set out very clearly into an introduction, and three subsequent sections detailing the court’s reasoning. (It can be read here [.pdf].)

The decision helpfully and clearly summarises the previous marriage cases which led to the same court’s earlier decision stating that same-sex marriages should be allowed. The distinction is that, in the previous cases, the law at issue was statutory; in the present case, however, it’s a constitutional matter.

The first matter to be decided, according to the court, was whether Proposition 8 constituted an amendment or a revision. (After that, they would deal with the issue of those who have already been married over the past year.) To do this, they needed to carefully “assess (1) the meaning and scope of the constitutional change at issue, and (2) the effect — both quantitative and qualitative — that the constitutional change will have on the basic governmental plan or framework embodied in the preexisting provisions of the California Constitution.”

The judges in the present case (I don’t know if they were actually the same individual judges who issued the previous marriage ruling) strive to frame their decision in the context of the earlier case, and thereby limit the scope and effect of the Proposition 8 provision: they say that the effect of Proposition 8 does not limit “the constitutional right of same-sex couples 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’ (Marriage Cases [...] 43 Cal.4th at p. 829)”.

The danger in this approach as I see it, however, is that the judges hands are tied to saying that same-sex couples are (at present, at least) separate but equal: this calls to mind the U.S. era of segregation, or South African apartheid – the whites at the whites’ water fountain, the blacks at theirs: separate, but equal. Of course, we know what history has to teach us about such arrangements.

What is more worrying, however, is that the judges strain their reasoning to reach this conclusion, not as their overall ruling of the court, but in order to justify calling Proposition 8 an “amendment” (which is permitted) – rather than a “revision” (which is not permitted).

That is to say, if the judges found that Proposition 8 was found to have “entirely repealed or abrogated” the constitutional privacy rights of same-sex couples and due process; or if they had found that Proposition 8 had “fundamentally altered” the meaning and substance of constitutional equal protection principles: then, they might have found that Proposition 8 was a revision and therefore invalid.

But they didn’t: the judges found that

Instead, 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 state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.

Perhaps I’m missing something, but the fact that they’ve decided to classify Prop 8 as an amendment and not a revision (thereby allowing Prop 8 to remain valid) worries me. (Especially as people on this side of the water are fond of following the people on the other side of the water..)

What do you think?

Popularity: 1% [?]

No related posts.