The California Supreme Court released its much-awaited Prop. 8 decision in Strauss v. Horton today - all 195 pages of it. The majority opinion takes 136 of those pages to rule that California's voters do have the right to amend the state constitution to make sure same-sex couples can't call themselves married. For the record, Justice Kathryn Werdeger comes to the same conclusion by a different route in her 10-page concurring opinion, making it a 6-1 decision, with Justice Carlos Moreno dissenting and arguing Prop. 8 should have been thrown out.
It is a pity that few of those pages will be read by those with the most trenchant comments about the opinion. As with the two other cases in California's trio: Lockyer v. City and County of San Francisco (2004) and In re Marriage Cases (2008), the court has demonstrated - for anyone paying attention to what they actually write rather than just the bottom-line result they reach - that they understand and can articulate exactly what their job is as judges. Justice Joyce Kennard has a three and a half page concurring opinion that nicely sums up the difference between last year's case and this year's model. These are not easy issues and this court takes its time to sort them out and answer every reasonable question before them.
The bottom line, though, is important. The way I read it, Prop. 8 is being upheld because it did not change - or purport to change - the full, substantive equality California same-sex couples have under domestic partnership laws. In this, the Prop. 8 proponents made not only a savvy strategic move but also, it turns out, a canny constitutional one as well.
Early on, a substantial faction of supporters wanted to argue that Prop. 8's intentionally vague language would invalidate the current domestic partnership laws as well as any same-sex marriages. But a more moderate camp prevailed, and the ballot arguments in favor of Prop. 8 explicitly said that it would have no effect on domestic partnership at all. That won them the election, and more important, it won them the Court.
The majority ruled that, since Prop. 8 didn't take away any of the comprehensive legal rights same-sex couples have under California law, the court did not have before it any wholesale revision of the equal protection clause or any other part of the constitution protecting the fundamental rights same-sex couples have. Our lawyers had many clever and creative arguments to make, but the glaring fact of California's success in protecting same-sex couples stood as the glaringly ironic barrier to the melodrama they were trying to offer up. While acknowledging that the word "marriage" is not in any sense trivial, the court's majority said that constitutionalizing the use of a word does not violate the structure of California's state government in a way that would require the court to strike down Prop. 8.
I think the court was headed in that direction at oral argument, as I mentioned at the time.
There will now be a few protests by the usual suspects in the usual places, but the real action will take place Saturday in Fresno. The ball is now squarely back in the political court; the only way to change Prop. 8 is to do another constitutional amendment. Fresno is California's fifth largest city, but is squarely in the middle of the agricultural Central Valley, and is by far the largest city to vote in favor of Prop. 8. They need to hear from us much more than San Francisco or L.A. or San Diego do, and I think this is a worthy use of our time and resources.
NOTE: Some people may be looking for more in the way of legal commentary on the decision. As is so often the case, Eugene Volokh's site should be your go-to. Plus, there's bonus info on the nomination of Sonia Sotomayor to the U.S. Supreme Court.
2 Comments for “Back to Work”
posted by Jorge on
I don’t have much of an excuse for not reading the Iowa decision, but why would I want to read an analysis that is so likely to be similar to my own?
posted by David Link on
Jorge, at least in my view, the ones who most need to read the opinions are the ones who criticize them. That’s the major sin I see in the discussion of these cases. It’d be nice if everybody interested in the cases read them, but there’s a special obligation on people who want to criticize something publicly to have some specific knowledge about what they’re complaining about. This is not a political obligation on anyone, or a legal one, but it seems to me to be just good manners.