In a 6-1 decision today, the California Supreme Court upheld Proposition 8, the voter-approved state constitutional amendment that eliminated the right of gays and lesbians to marry. However in a 7-0 decision, the California Supreme Court also held that the 18,000 same-sex marriages that took place before the election will remain valid. It is a small comfort, but a comfort still.
In his lone dissent, Judge Carlos Moreno argued that one should not be able to eliminate the right to marry by simple majority vote, nor should one be able to eliminate any fundamental right that way, because such rights truly are "fundamental" to the constitution. One cannot remove one of the structural supports for a house and claim that is it merely a cosmetic change. Here are three excerpts from Judge Moreno's opinion. (I stripped out the case references and footnotes).
[T]here is no “underlying” principle more basic to our Constitution than that the equal protection clause protects the fundamental rights of minorities from the will of the majority. Accordingly, Proposition 8’s withdrawal of any of those rights from gays and lesbians cannot be accomplished through constitutional amendment.
Under the majority’s reasoning, California’s voters could permissibly amend the state Constitution to limit Catholics’ right to freely exercise their religious beliefs, condition African-Americans’ right to vote on their ownership of real property, or strip women of the right to enter into or pursue a business or profession. While the federal Constitution would likely bar these initiatives, the California Constitution is intended to operate independently of, and in some cases more broadly than, its federal counterpart. The majority’s holding essentially strips the state Constitution of its independent vitality in protecting the fundamental rights of suspect classes... As discussed, denying gays and lesbians the right to marry, by wrenching minority rights away from judicial protection and subjecting them instead to a majority vote, attacks the very core of the equal protection principle.
The majority’s holding is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution.
While I agree strongly with Judge Moreno's argument, I am not surprised that it is the minority view. In their lengthy opinion, the majority of the court took pains to remind us that the previous case which recognized the right to marry also recognized many other rights for gays and lesbians, and those other protections remain intact. I still am very grateful to the California Supreme Court for their earlier ruling and, even here, I believe these judges--mostly conservative Republicans, don't forget!--still did all they felt they possibly could do to protect gays and lesbians.
The rest is up to us, the voters of California, and also our elected leaders. Equality California, which led the fight against Prop. 8, announced today it will indeed field an initiative to repeal Prop. 8 and restore the right to marry for November, 2010. So, just as a handy financial tip, if you have any savings left, you might want to buy stock in companies that do direct mailing in California. It's going to be the mother of all initiative battles, I am sure.