The California state Supreme Court’s decision this week to uphold the ballot initiative that revoked same-sex marriage was disappointing, but not totally unexpected.
Rumors have been circling for months that the court was not going to rule in favor of marriage equality, even though it was this same court that ruled in favor of marriage equality last May.
In its most recent ruling, the court stated, “The principal issue before us concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself [emphasis in original] through the initiative process so as to incorporate such a limitation as an explicit section of the state Constitution.”
Specifically, the court was not considering whether same-sex marriage was legal, but only if the process was legal — in this case, amending the state constitution by popular ballot.
To this question, the court determined the ballot process was proper, but also noted amending the state constitution is “less arduous and restrictive than the amendment process embodied in the federal Constitution,” and illustrated this point by noting that in 100 years, more than 500 amendments were made to the state document, but only 27 to the federal document in 200 years.
In response to the challenge that Prop. 8 should be considered a revision, not an amendment, the court stated that revisions can only be made during constitutional conventions and said the proposition didn’t “entirely repeal or abrogate” same-sex couples’ right to privacy, due process and equal protection, but “carves out a narrow and limited exception … reserving the official designation of the term ‘marriage’ for the union of opposite-sex couples.”
In the sole dissenting voice, Justice Carlos Moreno disagreed with the majority assertion that the amendment was not a revision, stating, “Denying the designation of marriage to same-sex couples cannot fairly be described as a ‘narrow’ or ‘limited’ exception to the requirement of equal protection.”
He added, “Promising equal treatment to some is fundamentally different from promising equal treatment to all. Promising treatment that is almost equal is fundamentally different from ensuring truly equal treatment. Granting a disfavored minority only some of the rights enjoyed by the majority is fundamentally different from recognizing, as a constitutional imperative, that they must be granted all of those rights.”
Moreno continued, “And if the majority does not avow that such broad constitutional changes could be made by amendment, but only more ‘limited’ ones, then I disagree with such an implicit distinction. As discussed, denying gays and lesbians the right to marry, by wrenching minority rights away from judicial protection and subjecting them instead to a majority vote, attacks the very core of the equal protection principle.”
In this, Moreno is right. If the majority can take away rights from a minority — and the judiciary and the legislature cannot protect them — then what protection does anyone have?