The California Supreme Court today upheld Proposition 8’s ban on same-sex marriage but also ruled that gay couples who wed before the election will continue to be married under state law.
The decision virtually ensures another fight at the ballot box over marriage rights for gays. Gay rights activists say they may ask voters to repeal the marriage ban as early as next year, and opponents have pledged to fight any such effort. Proposition 8 passed with 52% of the vote.
Although the court split 6-1 on the constitutionality of Proposition 8, the justices were unanimous in deciding to keep intact the marriages of as many as 18,000 gay couples who exchanged vows before the election.
The marriages began last June, after a 4-3 state high court ruling striking down the marriage ban last May.
In summary, we conclude that Proposition 8 constitutes a permissible constitutional amendment (rather than an impermissible constitutional revision), does not violate the separation of powers doctrine, and is not invalid under the â€œinalienable rightsâ€ theory proffered by the Attorney General. We further conclude that Proposition 8 does not apply retroactively and therefore that the marriages of same-sex couples performed prior to the effective date of Proposition 8 remain valid. Having determined that none of the constitutional challenges to the adoption of Proposition 8 have merit, we observe that if there is to be a change to the state constitutional rule embodied in that measure, it must â€œfind its expression at the ballot box.â€ (In re Marriage Cases, supra, 43 Cal.4th 757, 884 (conc. & dis. opn. of Corrigan, J.); see also id. at pp. 861, 878 (conc. & dis. opn. of Baxter, J.).)
So, off to the ballot, California is likely headed. But, whether it will be in 2010, 2012 or later is a matter of conjecture.
There are advanatges for gay marriage activists to push the issue into 2010. But, this is a California Governor election year where all of the Democrat candidates support gay marriage and the Republicans support civil unions/domestic partnerships with equitable rights. Will the Democrats who covet the Governorship, now held by Republican Arnold Schwarzenegger really want to run on the gay marriage issue?
Doubtful. And, the e-mail press releases from California Governor candidates are already flying into Flap’s e-mail box.
Yet, in 2012, President Barack Obama will be running for re-election which will again bring unprecedented numbers of African American voters to the polls. These voters supported California Proposition 8 in the last election by significant numbers.
The gay marriage proponents may then seek reddress in the courts since some homosexual couples are considered married and some who did not meet the deadline are not. But, this will be a slow, tedious process in the federal courts where a favorable outcome is not guaranteed for gay marriage.