Daniel Weintraub: Effect of state ruling likely short-lived

By Daniel Weintraub - dweintraub@sacbee.com

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Last week's decision by the California Supreme Court upholding Proposition 8 was hailed and criticized around the country as an important development in the ongoing legal and political battle over the definition of marriage.

It was an important decision. But as a legal opinion it had far less to do with gay rights than with the somewhat peculiar structure of the California Constitution and our system of direct democracy.

The decision's effect on the marriage debate will probably be short-lived. Supporters of same-sex marriage have already filed a federal challenge of Proposition 8 and are preparing a new ballot measure to try to repeal it. Voters will be asked to weigh in again on this question, perhaps next year, probably no later than 2012.

Daniel Weintraub can be reached at dweintraub@sacbee.com or (916) 321-1914.

The case decided last week sought to overturn Proposition 8 on fairly narrow legal grounds. The groups challenging the measure argued that it violated a rule that prohibits voters from undertaking wholesale "revisions" of the constitution via the ballot initiative. The constitution allows voters to "amend" the state's basic legal document by an initiative, but only the Legislature may prompt a change that is defined as a revision. These terms are not clearly defined, and thus left to the courts to decide.

Opponents of Proposition 8 argued that the measure represented a revision for several reasons. One, they said, was that it overturned last summer's Supreme Court ruling in which the court struck down an earlier, voter-approved ban on gay marriage as unconstitutional. A ballot measure overturning a high-court decision so changes the balance of powers set out in the constitution, the lawyers argued, that it amounts to a fundamental, and in this case impermissible, change in the law of the land.

But the court, given this opportunity to protect and expand its own legal turf, declined to do so. The justices said the people have every right to overturn the court's rulings. The court rules on the constitution as it stands at the time the justices hear their cases. If the people want to change the constitution after those rulings are issued, so be it.

In the case of gay marriage, the court's ruling last year struck down a statute – a law that is not part of the constitution. The court found at the time that the constitution as it was written did not permit such a law. But when supporters of traditional marriage wrote Proposition 8 to put that definition of marriage into the constitution, the court's hands were tied. To overturn the measure, the court would have had to rule the constitution to be unconstitutional. This is possible, given that two sections of the document can be found to be in conflict and one of those sections can be thrown out, but the court decided not to go there this time.

More to the point on gay marriage, opponents of Proposition 8 also argued that the initiative was a fundamental revision and not a mere tweak because it took away a civil right in the constitution. The court's ruling last summer had granted same-sex couples a right to equality under the state's marriage laws, and an initiative, the lawyer's argued, could not take away something so basic.

But the court also rejected that line of reasoning. The people, the court ruled, are supreme in California, and they have the power to decide what rights will be protected in the constitution and which ones will be denied or simply ignored. A definition of marriage as a union of one man and one woman might be offensive to a minority of Californians, but it is within the majority's power to make that distinction. In fact, the court said, no rights in the state constitution are beyond the reach of the voters to deny, unless they are also protected by the U.S. Constitution.

The court did paint with some shades of gray. The justices had ruled earlier that gays were entitled to all of the rights and responsibilities of marriage, which they have under California's domestic-partnership law. Proposition 8, the justices said, amounted to a debate over whether to call that collection of rights and duties one thing (marriage) when applied to straight couples and another (domestic partnerships) when applied to couples of the same sex. This was a fight, in the court's eyes, not over basic rights but over labels, and that was certainly not something that could be described as a fundamental change in the structure of California's government.

Supporters of gay rights have argued that labels do matter, and matter a lot. California, with the court's blessing, now has a marriage system that can be described as "separate but equal," the term the U.S. Supreme Court once used to describe the nation's segregated systems of public education, before they were ruled unconstitutional. Denying gay people the right to call their unions "marriage" while guaranteeing them all the other rights of such unions denies them the very status that marriage conveys in the eyes of society.

Be that as it may, that status is not something protected by the national Constitution, at least as it has been interpreted by the courts to date. And if a right is not in the U.S. Constitution, California voters are free to grant or ignore it as they desire. A decision to do so, the court found, is a simple amendment to the state's basic legal document and not a revision.

On that basis, they let Proposition 8 stand.