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California's top court upholds Prop. 8 ban on same-sex marriage

The court says the measure only takes away the term 'marriage' – not a gay couple's legal rights. The ruling also preserves 18,000 marriages that took place before the ban.

By Michael B. FarrellStaff writer of The Christian Science Monitor, Daniel B. WoodStaff writer of The Christian Science Monitor / May 27, 2009

Supporters of same-sex marriage block the streets in San Francisco, California, Tuesday, the day that California's supreme court ruled that a voter-approved proposition defining marriage as between a man and a woman could stand.

Kimberly White/Reuters


San Francisco and Los Angeles

The California Supreme Court ruled Tuesday to uphold a statewide ballot initiative that limits marriage to heterosexual couples, while at the same time preserving 18,000 same-sex marriages that took place before the measure was passed last year.

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In a highly anticipated decision that comes as a growing number of states legalize gay marriage and support for same-sex marriages grows in opinion polls, the court rejected the primary argument against Proposition 8 – that the measure amounts to an unconstitutional revision of the state's charter.

However, writing for the 6-to-1 majority opinion, Chief Justice Ronald George said that only the term "marriage" was being withheld from same-sex couples and that otherwise they would continue to enjoy the same legal rights as heterosexual married couples.

"Contrary to petitioners' assertion, Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple's state constitutional right of privacy and due process…. 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," Justice George wrote.

How to determine that couples in civil unions and married couples receive those same rights will be the challenge ahead, say legal experts.

"The court has acknowledged that the principle of equality exists and cannot be set aside by the voters [and] that all the people of California did was reserve the name 'marriage' for those unions between a man and a woman," says Doug Kmiec, a law professor at California's Pepperdine University, who supported Prop. 8 on the grounds that it upheld the religious origins of marriage.

The court is "tolerating this different nomenclature based on the will of the people, but the will of the people is not the end of the question," he says. "The net result of today's opinion is that there will be at least two different classes of people…. That difference is held quite intimately by gay couples."

Right to change constitution

The court's decision has been met with protest by gay-rights groups and praise by supporters of Prop. 8, which came about last year after the state Supreme Court ruled that a California law limiting marriage to a man and woman violated the constitution. About 18,000 couples married in the months after that ruling last May and before Prop. 8 passed with 52 percent of the vote in November.

In Tuesday's ruling, Justice George noted that while the justices may not personally believe that Prop. 8 should be "part of the California Constitution," the court "is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values."

"In a sense, petitioners' and the attorney general's complaint is that it is just too easy to amend the California Constitution through the initiative process. But it is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it," the ruling said.

However, he wrote, Prop. 8 does not change the court's original ruling when it comes to protecting the rights of same-sex couples.