The Corner

The Proposition 8 Decision

The document released by the California Supreme Court is 185 pages long, comprising a 136-page majority opinion (written by Chief Justice Ronald George, who wrote the opinion redefining marriage in May 2008); two concurring opinions covering four and ten pages; a 25-page dissent by Justice Carlos Moreno; and a list of all the attorneys involved in the case, including those who wrote the 63 amici curiae briefs submitted to the court. (Full disclosure — I filed a brief, along with an excellent attorney, Josh Baker, for National Organization for Marriage California.)

Despite its length, the decision is pretty simple. The court said Proposition 8 does not have “even a minimal effect” on the framework of government in California. If it had such an effect, it would have had to be approved by the legislature before going to voters. The court also said Proposition 8 did not change the judicial function or interfere with the separation of powers. The court said there was no support in the law for the ideas (1) that a popular vote is invalid if it “diminishes” “constitutional rights” or (2) that people can’t vote on “inalienable rights” (this latter was the attorney general’s argument).

By refusing to defer the effect of its redefinition decision until after Proposition 8 had been voted on, the court had created a situation where same-sex couples married before Proposition 8 was approved. The court, unsurprisingly, said these “interim marriages” are still valid.

The dissent proposed a novel rule: that a law is a revision of the Constitution if it “requires” discrimination against a judicially protected minority since doing so would “[strike] at the core of the promise of equality that underlies our California Constitution.”

The bottom line is that the court was invited to hold that the people of California did not have the ability to change the Constitution — following legal procedures for doing so — to reject the result flowing from the court’s creation of a new “right.” To have done anything other than what they did would have been to repudiate a core principle of the rule of law: that California has “a government of laws and not of men.” We can be grateful they stepped away from that precipice.


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