Prelude

In 2000, the voters overwhelmingly passed Proposition 22, the defense of marriage initiative, which enacted a statute stating that California recognized as valid only a marriage between a man and a woman.

On May 15, 2008, the California Supreme Court decided the In re Marriage Cases holding that the California Constitution provided a right to same-sex couples to marry. That opinion has been discussed in a previous Briefing Report “Supreme Court Creates a New Right: Gay Marriage” dated May 28, 2008.

Proposition 8

Of course, if the constitution said otherwise, then it would be exceedingly difficult to interpret it to say such a right exists. Supporters of traditional marriage qualified Proposition 8 for the ballot to add a section to the California Constitution to declare, “Only marriage between a man and a woman is valid or recognized in California.” The voters passed Proposition 8 on November 4, 2008 by a 52%-48% vote.

Challenge to Proposition 8

Very soon after the people expressed their viewpoint, groups supporting same-sex marriage petitioned the California Supreme Court to invalidate Proposition 8 arguing that it 1] violated the California constitution because it revised rather amended the Constitution because the initiative power is limited to amending and 2] violated the separation of powers between legislative and judicial functions by re-adjudicating the right of gays to marry, which the Supreme Court had recognized in the Marriage Cases in May, 2008. Attorney General Brown refused to carry out his duty to defend state laws and filed a brief arguing that Proposition 8 was invalid because it violated an inalienable right of gay couples, their right to privacy and to marry each other.

Strauss v. Horton

On May 26, 2009, the California Supreme Court decided Strauss v. Horton, which upheld the California constitutionality of Proposition 8. The court was at pains to separate the Strauss case from the Marriage Cases stating the principal legal issue was entirely distinct because the first case determined the validity of a statutory provision limiting marriage to a man and a woman under state constitutional provisions that do not expressly permit or proscribe such a limitation. In Strauss, they state the issue “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 so as to incorporate such limitation as an explicit section of the state Constitution.”

Under the state Constitution the people may amend but may not revise the state Constitution using the initiative process. The court decided that Proposition 8 merely carved out a limited exception to the privacy rights of same-sex couples to marry by reserving “marriage” to a man and a woman but left undisturbed all of the other aspects of a same-sex couple’s constitutional right to establish an officially recognized and protected family relationship.

The court easily disposed of the separation of powers argument stating simply that Proposition 8 establishes a new constitutional rule that became effective upon the proposition’s passage. That act did not adjudicate anything. Most importantly, the state Constitution clearly recognizes the right of the people to amend it. The people cannot usurp a power that they have in the California Constitution’s own words.

Additionally, California’s Supreme Court decided that all marriages contracted between same-sex partners after the In re Marriage Cases opinion but before the November 5, 2008 passage of Proposition 8 were valid.

Reaction of the Same Sex Marriage Supporters: Ballot

The ACLU, GLAAD, Lambda Legal, GLAD and several other groups, which support gay marriage, have advocated that the way to deal with Proposition 8 and the Strauss opinion is at the ballot box. They have expressed concern so soon after losing Proposition 8 that it would be apparently so costly in time and money to go to the voters, that some same-sex marriage supporters may be tempted to litigate the right of gays to marry by asserting that Proposition 8 has violated same-sex partners’ federal equal protection right to marry. Instead, they contend that rather than filing premature lawsuits, supporters of same-sex marriage need to lobby those people they know to get them to support same-sex marriage.

Litigation: Perry v. Schwarzenegger

The ACLU and their allies were merely reacting to what had occurred because other supporters of same-sex marriage were unwilling to wait until the California Supreme Court decided Strauss. On May 22, 2009, Perry and three other plaintiffs’ (two same-sex couples) attorneys filed a complaint for violation of civil rights in United States District Court in San Francisco. Their complaint seeks 1] a declaration that Proposition 8, which denies gay and lesbian individuals the opportunity to marry civilly and enter into the same officially sanctioned family relationship with their loved ones as heterosexual individuals, is unconstitutional under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution, and 2] a preliminary and permanent injunction preventing Defendants from enforcing that provision against the plaintiffs. Just in case there is any validity or effectiveness left of Proposition 22 after In re Marriage Cases, they also seek a declaration of invalidity of the statutory provisions and the enjoining of their enforcement.

A very interesting part of the Perry case is that Theodore Olson, the attorney who argued for President Bush in Bush v. Gore after the 2000 election, and David Boies, the attorney who represented Al Gore, are working together for the plaintiffs. Given the prestige and billing rates of those attorneys, some substantial money may be backing this case.

Some people who support same-sex marriage are concerned that it is premature to take a case to federal court because the United States Supreme Court, in their view, often lets a political or legal consensus develop before deciding a controversial issue such as whether the United States Constitution protects the right of same-sex couples to marry. A University of California law professor has said that there would not be a huge setback, if the Supreme Court rejected the challenge. Another case can try again after the court changes membership.

Unsettled for some time

What all of this means is difficult to see at this time. Clearly, though, the last word has been by no means heard on the issue of whether there is a legal right for same-sex couples to marry -- regardless of how many of the people how many times may have spoken their opinion. As the ProtectMarriage general counsel said, “I think there needs to come an end to these challenges to the vote of the people.” Unfortunately, as the new case shows that end will not come soon.

For more information on this report or other Judiciary issues, contact Mike Petersen, Senate Republican Office of Policy at 916/651-1501.