by John M. Curtis
(310) 204-8700

Copyright May 27, 2009
All Rights Reserved.

         Making stunning flip-flop after striking down May 15, 2008 Prop. 22—AKA former Sen. Pete Knight’s “Defense of Marriage Act”—the California Supreme Court upheld Prop. 8 May 26, amending the State’s constitution that “Only a marriage between a man and a woman is valid or recognized in California.”  Twelve months before, the High Court struck down Prop 22, eliminating language in the California Family Code passed 64% to 38% by initiative March 7, 2000 that defined marriage as “a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary.”  From May 15, 2008 to Nov. 4, 2008 roughly 18,000 gay couples took marital vows, now profoundly compromised by yesterdays’ ruling, realizing that should they divorce they could never marry again legally in California.

            Instead of ruling on the constitutionality of Prop 8, the High Court punted, ruling instead that the State Constitution had been amended by initiative Nov. 4, 2008 now banning gay marriage.  More than $80 million was spent by proponents of Prop. 8, largely from Mormon and Christian evangelical churches, approximately $20 million from Colorado Springs-based James Dobson’s “Focus on the Family.”  When the California Supreme Court ruled against Prop. 22, they agreed with the Massachusetts’ High Court that it violated 14th Amendment’s Equal Protection and Due Process clauses.  Legalizing same-sex marriage in Massachusetts, the High Court equated gender and civil rights, ruling that domestic partnerships violated 1954 Brown v. Board of Education, creating a “separate but equal” underclass, making a strong constitutional case for gay marriage. 

            Before protests settled down following the May 26 ruling, former George W. Bush Solicitor Gen. Ted Olson and super-lawyer David Boies filed suit on behalf of Paul Katami and Jeffrey Zarillo in Los Angeles U.S District Court, arguing that Prop. 8 violated the 14th Amendments Equal Protection and Due Process clauses, the exact conclusions of the California High Court May 15, 2008 and Massachusetts’ High Court’s Nov. 2003 approving same-sex marriage.  California’s High Court’s ruling upholding Prop. 8 opens the door for an eventual Supreme Court challenge, should the High Court take up the case.  With five conservative-leaning justices, it’s a crapshoot whether or not the High Court would rule Prop. 8 unconstitutional.  With the latest suit, expect the L.A. District Court to eventually refer the case to the 9th Circuit Court of Appeals in San Francisco.

            Olson and Boies wouldn’t have filed suit in District Court had they not thought Prop. 8 violated the U.S. Constitution.  Common sense tells you that domestic partnerships constitute as separate but equal class, violating Brown. v. Board of Education.  Ruling on Prop. 8, the High Court reasoned that it’s not the court’s job to decide whether or not the initiative was “wise or sound as a matter of policy,” skirting their job of determining constitutionality.  Shirking its responsibility, the court opined, “the scope of the right of the people, under the provisions of the California Constitution itself through the initiative process,” ignoring flaws in California’s initiative process.  Surely, the High Court wouldn’t permit a simple majority of voters to discriminate against and violate the civil liberties of fellow citizens.  Prop. 8 disenfranchises the marital rights of gay people.

            California Atty. Gen. Jerry Brown—a rumored gubernatorial candidate—objected to Prop. 8 on the grounds that the initiative robbed gay people of certain inalienable rights.  When the state grants the right to marry, it doesn’t make reference to sexual orientation.  Prop. 8 clearly specifies that “only a marriage between a man and a women is valid or recognized in California,” unambiguously discriminating against gays.  “The 7-million Californians who worked hard to protect marriage as a union the union of husband and wife are breathing easier today,” said Brian Brown, National Organization for Marriage executive director.  His group believes that same-sex marriage destroys the moral fiber of society, recreating Sodom and Gomorrah, promoting depraved behavior.  All evidence says the opposite:  Marriage helps stabilize and legitimize the gay community.            

            Prop. 8 now heads to Federal courts to determine whether or not it’s constitutional.  Brilliant and highly experienced lawyers Olson and Boies believe that the initiative violates the 14th Amendment’s Equal Protection and Due Process clauses.  High Courts in Massachusetts, Iowa, Rhode Island, Maine and New Hampshire believe that banning same-sex marriage runs afoul with state and national constitutions.  California’s Supreme Court ruled correctly May 15, 2008, tossing out Prop. 22, the March 7, 2000 initiative that defined marriage as between a man and woman.   California’s High Court ruling rubber-stamped a proposition that clearly discriminates against gay people.  “The majority’s holding is not just a defeat for same sex couples, but for any minority group that seeks protection for the equal protection clause of the California Constitution,” said dissenting Justice Carlos Moreno.

 About the Author

 John M. Curtis writes politically neutral commentary analyzing spin in national and global news.  He's editor of OnlineColumnist.com and author of Dodging The Bullet and Operation Charisma.