Tuesday, May 26, 2009

California Supreme Court Upholds Prop 8, but Interprets It Narrowly

Scales The California Supreme Court's Proposition 8 opinion came out today, and the opinoin, Strauss v. Horton, is an interesting and lengthy exercise in line drawing. The court upheld the proposition, but to do so, construed the meaning of the language extremely narrowly. Essentially, the court's opinion narrows to this, which is essentially repeated in some form on about every third page of the majority's 136-page decision,

the new constitutional provision cannot properly be interpreted as having repealed, by implication, the preexisting state constitutional right of same-sex couples to enter into an officially recognized and protected family relationship except insofar as that preexisting constitutional right included the right of access to the designation of marriage.

In other words, all that Proposition 8 does is say that the officially recognized and protected family relationship that same sex couples enter into is no longer called "marriage." The majority also held that in addition to not altering any of the substantive rights that same sex couples who married before the proposition went into effect, the proposition did nothing to change the designation of those couples as married. This is probably a narrow enough reading that the proposition would also withstand federal constitutional scrutiny under the reasoning in Romer v. Evans.

I realize that this decision is a blow to the LGBT community and to equal rights in general. I have a hard time believing that if the voters had voted to call marriages between members of different races "domestic partnerships" instead of marriages that the court would have ruled the same way (sexual orientation gets strict scrutiny under California's constitution and that did not change with this decision, so this is an apt comparison). At the same time, though, I have to think it's an extremely hollow victory for the proponents of the proposition. Calvin Massey at the Faculty Lounge even calls it a win for LGBT-rights advocates. The fight on the proponents' side doesn't really seem to be about the word alone, and more about the rights and obligations surrounding that officially sanctioned and supported relationship, although many people who I know focus on the word because of the religious connection. I personally just don't believe that the religious justification should work for the state. And see Bill Araiza's post at Prawfsblawg, suggesting that the decision might mean that the state will have to deny the status of marriage to everyone to achieve equal substantive status.

In any event, the decision is a very interesting one, and although I've completely ignored the extensive discussion on whether it's acceptable to allow constitutional amendments that limit equal protection rights for political minorities so easily, that discussion is fascinating, too. Overall, it's a very thought-provoking opinion.


MM

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