From the New York Times: http://www.nytimes.com/2009/05/27/us/27marriage.html?_r=1&hp
By JOHN SCHWARTZ
Published: May 26, 2009
The California Supreme Court upheld a ban on same-sex marriage today, ratifying a decision made by voters last year that runs counter to a growing trend of states allowing the practice.
The decision, however, preserves the 18,000 marriages performed between the court’s decision last May that same-sex marriage was lawful and the passage by voters in November of Proposition 8, which banned it. Supporters of the proposition argued that the marriages should no longer be recognized.
Today’s decision, written by Chief Justice Ronald M. George for a 6-to-1 majority, said that same-sex couples still have the right to civil unions, which gives them the ability to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage.” But the justices said that the voters had clearly expressed their will to limit the formality of marriage to heterosexual couples.
Heated reaction to the decision began immediately, with protestors blocking traffic in front of San Francisco City Hall, their hands locked.
The same court had ruled in May that same-sex couples enjoyed the same fundamental “right to marry” as heterosexual couples. That sweeping 4-3 decision provoked a backlash from opponents that led to Proposition 8, which garnered 52 percent of the vote last November after a bitter electoral fight.
The opinion marks a new round in the long-running battle in California over the issue, and will almost certainly lead to a counter-initiative intended to overturn Proposition 8, which changed the state constitution, as early as next year.
The opinion focused on whether the use of a voter initiative to narrow constitutional rights under Proposition 8 went too far.
Supporters of same-sex marriage, who filed several suits challenging the proposition, argued that the change to the state’s constitution was so fundamental that the initiative was not an amendment to the constitution but a “revision,” a term for measures that rework core constitutional principles.
Revisions, under California law, cannot be decided through a simple signature drive and majority vote, which is what led to Proposition 8; they can only be placed on the ballot with a two-thirds vote by the legislature.
It has historically been rare, however, for the state’s courts to overturn initiatives on the ground that they are actually revisions, and many legal scholars deemed the challenge against Proposition 8 a long shot.
The question of whether Proposition 8 was an amendment or revision was the centerpiece of the oral arguments before the State Supreme Court during its hearing on March 5.
The justices who had issued the ringing support of same-sex marriage in 2008 presented a far less supportive front during the three-hour hearing. A number of justices who had voted in the majority in the 2008 case, particularly Joyce L. Kennard, strongly suggested in their questions from the bench that they were reluctant to overturn the will of the voters or to undercut the initiative process.
The justices had seemed to be seeking a middle ground that would allow the rights they had affirmed the year before to be preserved in the form of civil unions, which would be different from marriage in name only. Justice Kennard suggested that the substantive rights of gays were the same after the proposition, and all that had changed was “the label of marriage.”
That distinction was deeply dissatisfying to an attorney for plaintiffs, Shannon Minter, who argued that without the right to the word “marriage,” same-sex couples would find “our outsider status enshrined in our Constitution.”
In the months since the case was argued, three other states have legalized same-sex marriage. On April 3, Iowa’s supreme court struck down a state statute that limited civil marriage to a union between a man and a woman — and cited California’s 2008 decision repeatedly in support of its ruling. Less than a week later, the Vermont Legislature narrowly overrode a veto by Gov. Jim Douglas of a bill that allowed same-sex couples to marry. Then on May 6, Maine’s legislature, too, passed a bill allowing same-sex marriage, and Gov. John Baldaci signed it.
Initiatives are also moving forward in New York and New Jersey; a similar measure has stalled in the New Hampshire legislature by a slim margin this month, but could come up for a new vote next month.
At the same time, attitudes of Americans toward same-sex marriage favor liberalization of the practice. In an April CBS/New York Times poll, 42 percent of those surveyed favored same-sex marriage, up from 21 percent at election time in 2004, when it was a wedge issue during the presidential campaign. That poll suggests the trend will continue into the future: 57 percent of the respondents favored legal recognition for same-sex marriage, compared with 31 percent of respondents over the age of 40.
The language of Chief Justice George’s decision seemed almost regretful, as he wrote that “our task in the present proceeding is not to determine whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution.” Instead, he wrote, “our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values.”
