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On Tuesday, May 26, not too surprisingly, the California Supreme Court ruled to uphold Proposition 8; which, allowed the voters to amend the state constitution to add, "Only marriage between a man and a woman is valid or recognized in California." Though disappointing, I didn't see how any other decision would be reached. I'm not saying I agree, I'm saying, I saw this coming. A year ago on May 15, this same court ruled that a ban against same-sex marriage violated the state constitution's equal protection guarantee, thereby making same-sex marriage legal in the state of California. We already know where this court stands on the issue of same-sex marriage. And as much as I may have wished for this to be a ruling on same-sex marriage, it wasn't. This time around, the ruling was to determine whether or not Prop 8 was an amendment, and therefore would stand with the majority vote of the electorate; or if this was actually a revision which would require the proposition to first pass the Legislature with a 2/3 vote before going to the electorate, effectively nullifying the proposition. In a 6-1 vote, the court ruled Prop 8 was an amendment, the proposition stands. You can read the full court opinion in this pdf.
As part of the Prop 8 ruling, the court also had to decide the fate of the 18,000 couples who had married before the proposition passed. The court unanimously ruled the marriages would stand as legal marriages. While I think this was the only right and fair decision, it sets up an interesting situation in California. To quote Dorothy Snarker,
The jumble of a ruling by the state's highest court yesterday only serves to highlight the inherent inequality of banning gay marriage. In essence, the court created three classes of citizen in California. Gays who got married when it was legal. Gays who aren't allowed to get married now that it's illegal again. Straights who can get married anytime they damn well please. It makes no sense and yet there it is. Hello, separate, but in no way equal.
The passage of Prop 8 ultimately defines marriage as one man and one woman, thus excluding same-sex couples from legal marriage. It did not exclude, or remove, the right for same-sex couples to form domestic partnerships which are still legal in California. Which, not that it's any consolation to have separate but unequal coupledom under the law, because domestic partnership does not grant the same rights as marriage, but many states that have passed constitutional amendments to define marriage, also exclude the ability of gay couples to form any legal partnership which resembles marriage.
This ruling, while disappointing, is not the end for the fight for equal marriage rights in California, but rather a lost battle. So what's next? Courage Campaign, an online network that organizes grassroots and netroot organizations, is set to air their new "Fidelity"TV ad across California. You can watch the ad, make donations, and get information at the Courage Campaign site.
Another grassroots organization is collecting signatures of registered California voters for The Domestic Partnership Initiative. The Domestic Partnership Initiative would replace the word marriage with domestic partnership throughout California law, but would preserve all the rights of marriage. Domestic Partnerships would apply to all couples, gay and straight, and all rights would be the same for everyone. This constitutional amendment, if passed, would effectively overturn Prop 8. If enough signatures are collected, it will be on the 2010 ballot. If you are a registered voter in California, you can sign the petition at The Domestic Partnership Initiative site.
Also, in a rather unexpected turn of events, two attorneys, Theodore B. Olson and David Boies have filed a challenge to Prop 8 in Federal Court. The preliminary injunction is in this pdf. The gist of the argument is,
The attorneys argue that relegating same-sex couples to domestic partnerships instead of granting them full marriage rights is a violation of the equal protection and due process
