The California Supreme Court, by a 6-1 count, upheld Proposition 8 results, the second time in 10 years California voters have passed a proposition confirming the traditional definition of marriage as between a man and a woman. The Court did some face-saving, claiming their original decision was sustained except for the use of the term "marriage", that any and all rights of marriage are available through domestic partnerships. They also said that all gay "marriages" performed after its ruling will remain in force.
A Review of the History of California Propositions 22 (2000) and 8 (2008)
In 1977, there were changes made to clarify language in the California Civil Code which described marriage without explicit reference to gender. The subsequent California Family Code had two relevant sections: 300, which explicitly noted in-state marriages were between a man and a woman, and 308, which has language that basically recognizes marriages from other states. Recall that there was a Defense of Marriage Act signed into law by President Clinton in 1996 (opposed by then Illinois state senate candidate Barack Obama--this should be noted by Carrie Prejean and Fox News commentators); the Defense of Marriage Act explicitly defines marriage as between a man and a woman for federal laws and allows states the right to refuse to recognize same-sex marriages from other states.
In 2000, Proposition 22 (the California Defense of Marriage Act) explicitly clarified section 308 and secured the right of refusal to recognize out-of-state same-sex marriage in the national Defense of Marriage Act by adding 308.5: only marriages between a man and a woman are valid and recognized in California. The California legislature attempted to strip the traditional marriage language of section 300, which clearly violated the spirit and intent of Proposition 22 and the mandate of the people, and the bill was vetoed by Governor Schwarznegger, whom argued that only the voters of California could repeal Proposition 22. There were legal challenges to traditional marriage on various grounds, including the state constitution. In May 2008, the California Supreme Court, in a split decision, ruled that the California Family Code traditional marriage definition, confirmed by Proposition 22, violated the state constitution. The state constitution can be amended by a California proposition. Proposition 8 in 2008 added section 7.5 to Article 1 of the state constitution to include the Proposition 22 definition of opposite-sex/traditional marriage. [Carrie Prejean and Fox News commentators should note that Obama opposed Proposition 8, the constitutional version of the California Defense of Marriage Act, which is consistent with his original 1996 against the national bill. It simply brings yet another example of Obama's notoriously nuanced views, i.e., how Obama tries disingenuously to play both sides of an issue: he pays lip service to the traditional definition of marriage, but it's not matched by his actions.]
Non-lawyers like myself get exasperated by sophistical hairsplitting. For instance, the California Supreme Court could have originally ruled domestic partnerships were vested with the same constitutional rights as marriages and same-gender "marriages" from other states would be recognized as domestic partnerships in California. This would not have ignited the current political firestorm, given the fact that domestic partnerhships were already a fact of life in California. I do agree many social conservatives do not support the concept of domestic partnerships, but I believe that it's simply an extension of the concept of contracts.
Perhaps the California Supreme Court bought into the "separate but equal" rhetoric relevant to Brown v. Board of Education of Topeka. Recall that up to that point of time there had been workarounds to the Equal Protection Clause by implementing de facto caste systems, including arbitrary race-based filters to local public schools, so long as each student had access to a school, comparable on a variety of metrics (e.g., facilities, curricula, faculty, etc.) What you had was a Byzantine school system where, say, black children in integrated neighborhoods were not offered an opportunity to attend the same nearby public school as their neighborhood friends, because of an unconscionable race filter, certainly an arbitrary policy, without educational merit, inconsistent with the spirit and intent of civil rights laws. Not only that, but it was a dysfunctional, inefficient regulatory system with significant, unnecessary related transportation costs simply to maintain unjust race-based filters.
But there is no evidence here that California or other states institutionally created arbitrary rules for marriage to rationalize a caste system between straight and gay committed couples. Gay relationships and traditional marriages have existed separately for thousands of years. Traditional marriages have been integral for society's implementation of family (given the nature of procreation) and self-preservation.
Discussion
Many supporters of traditional marriage oppose domestic partnerships and/or the sustainment of the interim "marriages". I disagree. I believe that adults in voluntary committed relationships should have legal protections. It's fundamentally unjust that a hospital would allow estranged family members visitation rights but not members of the patient's own household or that partners would be excluded from considerations of inheritance. Second, even though I disagree with the legal activism underlying the original California court decision which overturned an earlier California proposition establishing the traditional definition of marriage, I think that contracts made in good faith after the original decision have to be honored.
This position, of course, doesn't placate the opponents of Proposition 8, whom assert that there is a double standard between interim marriage licenses issued and the fact that this option no longer is available for gay partners and are not comforted by the high court's argument that domestic partners have been granted everything available to married people except for the term "marriage". They are incensed by the alleged unprecedented discriminatory rollback of civil rights. I disagree. The issue was with the original California Supreme Court decision which overruled the definition of marriage specifically mandated by the voters of California and, in fact, has been the law of all 50 states for over the first 200-odd years of the republic (not to mention the thousands of years of history of the Judaic-Christian tradition). The California Supreme Court decided not to work through the existing domestic partnership concept and, unlike the historic Brown decision, did not have the moral authority of a unanimous decision on a highly divisive issue. I should point out here that only about a quarter of California voters report themselves as liberal, and despite one of the most organized oppositions of a proposition in the history of California which included all the major newspapers in the state, the liberal mass media, Governor Schwarzenegger, future President Obama, almost all Democratic statewide officials and state legislators, more money ($32M vs. $28M), and Hollywood, Proposition 8 carried.
Kinky Friedman, Texas singer/comedian/gubernatorial hopeful, famously quipped, "I support gay marriage. I believe they have a right to be as miserable as the rest of us." Um, Kinky, they were already miserable in domestic partnerships; they thought the grass was greener on the other side.
