Constitutional Confusion in California

Yesterday’s ruling by the California Supreme Court in Strauss v. Horton and related cases, was about as narrow a victory for the proponents of Proposition 8 that the Court could have rendered. Although the Court upheld the validity of Proposition 8, which amends the State Constitution to read that only marriage between a man and a woman is valid or recognized in California, the Court at the same time recognized the validity of the thousands of same sex marriages performed in California between the time of the Court’s decision last year finding a constitutional right to marry regardless of sexual orientation, and the voters’ amendment of the Constitution last November preventing the state from recognizing a marriage between same sex couples.

More importantly, the Court decided that Prop. 8 cannot affect anybody’s substantive rights at all. Therefore, all Prop. 8 did was to deny the state the power to call a same sex union a marriage (except for the thousands of same sex couples who took advantage of the Supreme Court’s ruling last year). For the future, the Court held that “same-sex couples continue to enjoy the same substantive core benefits afforded by those state constitutional rights as those enjoyed by opposite-sex couples–including the constitutional right to enter into an officially recognized and protected family relationship with the person of one’s choice and to raise children in that family if the couple so chooses–with the sole, albeit significant, exception that the designation of ‘marriage’ is, by virtue of the new state constitutional provision, now reserved for opposite-sex couples.” (slip opinion at p. 92)

It is ironic that in order to save Proposition 8, the Court had to render it almost meaningless. On the other hand, if the Court had held that Proposition 8 had the fundamental effects that its opponents claimed that it had, the Court might have had to overturn Proposition 8 as an invalid attempt to revise, as opposed to amend, the Constitution.

This result is certain to cause confusion, because the law will continue to recognize the marriages of gay couples who were married last year, while gay couples who obtain civil unions this year are entitled to all of the substantive rights of married couples, except that the state cannot say that they are married. Proposition 8 is still the law in California, but all it means is that only opposite-sex couples are entitled to the designation “marriage.” Same-sex couples will have to search for another name to describe a relationship that they believe is just as sweet.

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