California Upholds Gay Marriage Ban, But Gay Marriage Wins

California Upholds Gay Marriage Ban, But Gay Marriage Wins


Anybody who reads this blog knows where I fall on the gay marriage issue, but the Supreme Court of California wasn’t reallly deciding the validity of gay marriage itself, so the ruling was actually dead on in my opinion.

This article from Bloomberg points out why…

The court legalized gay marriage a year ago before California voters overruled it in November. Fifty-two percent of them approved the ban, amending the state constitution to recognize only marriages between a man and a woman. The court ruled 6 to 1 today in favor of upholding Proposition 8, saying it was ruling only on the ability of voters to pass a ballot measure rather than whether gay marriage should be legal.

“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 through the initiative process,” the court wrote, “not to determine whether the provision at issue is wise or sound.”

Yes, it’s the law and it’s specific. And if they ruled against that provision, it would harm the citizens’ rights to amend the Constitution. That’s not a precedent the courts want to set just to prove a point.

But here’s the most important part of this entire argument…all the marriages that happened before the ban are legal!!!

The court ruled unanimously that the 18,000 same-sex marriages performed before the ban remain valid. The November ban sparked protests across California and led activists to create Web sites that identified individuals who donated money to support the measure and boycott donors’ business. The ballot measure overrode the court’s May 15, 2008, ruling that laws barring same-sex marriages were unconstitutional.

So to all of you gay marriage advocates, I know this seems like a loss today but it’s not.

Actually, this is a VERY big win as it signals continuous positive movement. Because you know there will be another ballot initiative to overturn Prop 8 at some point and it’ll pass and California will join the growing number of states where marriage is equal for all. But you have to get out there and fight for it if you want it to happen.

More as it develops…

  • Rich

    “But you have to get out there and fight for it if you want it to happen.”

    I’d rather you encourage supporters of gay marriage to go out and try to convince people on the merits of the argument as opposed to the harrassment, threats, beating up little old ladies, forcing people to lose their jobs, etc. that happened when popular opinion didn’t go their way.

    Note to all supporters: Civil discourse and reasoned debate will win more “fights” in the public arena than temper-tantrums will.

  • ExiledIndependent

    Wow, THREE exclamation points, Justin? That’s passion.

  • kranky kritter

    No, it’s definitely a loss. California says that the people have the right to ban gay marriage, it’s not a protected civl right under the CA constitution.

    It is of course true that the people of CA have the right to change their mind, and that advocates have the right to persuade them to do so. And that’s consoling.

    But it’s not a win, it’s a loss. I am fine with people being positive and optimistic about the future, but when they stretch the spin to call a big loss a win, that bugs me.

    If I were gay, it would irritate even more if someone tried to tell me this was a win. Maybe this is an OK approach for a kindergarten teacher with a 5 year old, but adults don’t like to be patronized.

  • Tully

    From what I’ve read of the decision so far, it’s definitely somewhat of a Pyhhric victory for the pro-Prop 8 folks. The decision looks to be very narrowly crafted, and did nothing to overturn the previous decision that inspired Prop 8 other than to remove the label “marriage” from future California Domestic Partnerships. Looks to me as if the previous decision can be used to expand CDP’s to be marriage in all but name, eliminating (for purposes of state law) the effective differences between CDP’s and marriages as far as effective rights go, consistent with the previous “equal protection” ruling.

    (Of course the legislature already had the power to do that, and the numbers as well. They even passed a same-sex marriage bill in 2005, which Ah-nuld vetoed.)

    I disagree with the “equal protection & equal rights” argument that the Cali Supremes used in the previous decision, but that’s neither here nor there in this case other than to emphasize my belief that such fundamental changes in existing law (the creation of new rights) should come from the legislature, not the courts, and that the decision was based on flawed legal reasoning. The backlash from such judicial activism has done much more to hurt gays on the issue than help.

    It’ll be interesting to see how the new Maine law plays out. The anti-SSM folks have a “people’s veto” on the ballot for November, but I doubt the veto will pass. Give us a decade or so of existing SSM’s not leading to the EOTWAWKI, and much of the heat will leak out of the counter-arguments. Unless, of course, pro-SSM forces continue to treat all dissenters from the complete gay acitivist orthodoxy as heretics to be burned at the stake.

  • kranky kritter

    Wouldn’t that just be a “leave it to California” moment if they got stuck with exactly equal legal status under two different names? In essence, they’d be saying, OK, in this case separate IS equal.”


    AIFF. LOL.

  • ExiledIndependent

    Let’s all remember that this isn’t a civil rights issue, though. The Cali court said as much in their ruling. It is, however, a states-and-peoples rights issue. Go 10th Amendment!

  • wj

    kranky, lets be clear here in your first comment. The California Supreme Court did not say that gay marriage was or was not a civil right. What they said was that the California State Constitution could be amended to change what rights it did or did not convey. The alternative, in the case before them, was to say that the constitution could not be amended — which seems like a stretch for anyone with actual expertise in interpreting a document with as many amendments as this one has piled up over the years.

  • kranky kritter

    OK, agreed, they didn’t state it. But they also didn’t find it. If the ban just upheldconflicted with an existing right already guaranteed by the CA state constitution, then don’t you think the court would have said so?

    Since they didn’t, then it’s reasonable (at least to me) to presume that in the view of CA’s highest court, the current state constitution doesn’t speak to it. In other words, as of today, it’s not a civil right according to the CA state constitution.

    But then hey, I’m a guy who doesn’t think that rights actually exist floating out in space waiting for us to discover them. I think they only come into existence when humans declare them to exist and then enforce them. Guess I’m a kook that way. :-)

  • Jess

    This was one of the first articles I’ve read showing this positive aspect of the Prop 8 decision. That voters are now allowed to decide for themselves the legality of same-sex marriage. This video shows some of the other opinions, including Huffington Post’s, which falls in line with yours.

  • John


    Since when is it cruel to boycott a business that supports things that are against your interests, and to encourage others to do the same? That seems about as free market as you can get. I don’t think anyone expects anti-abortion advocates to get family planning advice from Planned Parenthood. And I’m sure that a few people who voted for Prop 8 avoid openly gay owned businesses.

    If a business is going to support something by donating to the cause, not just voting for it, personally I would like to know. And yeah, it would affect whether or not I do my business there. Maybe they’ll think twice about who their customers are next time they decide to take an openly political stance on something that affects the community.