Prop 8 Ruling: The Measure of a Court

Sheila Kuehl

posted on Wednesday, 27 May 2009

Originally posted at: as: Prop 8 Ruling: The Court Has Lost Its Way.

no on prop 8 unite2 Prop 8 Ruling: The Measure of a CourtYesterday, the California Supreme Court ruled on the validity of Proposition 8, the measure adopted by California voters last November to add a new section 7.5 to Article I of the California Constitution, as follows: “Only marriage between a man and a woman is valid or recognized in California”.

The measure was challenged by a coalition of organizations and individuals who favor the ability of same-sex couples to marry on three bases:


  1. That the measure adopted by the voters 52% to 48% was not a simple amendment to the state Constitution, which may be adopted by a majority vote, but, rather, a revision to the Constitution, which may not. The Constitution may only be changed in one of these two ways, and, if the change is actually a revision to the Constitution, it must either be passed by a two-thirds vote of each house of the state Legislature and put to a vote of the people, or proposed through a constitutional convention and put to a vote
  2. The second challenge theorized that Prop 8 violated the separation of powers principle because it abrogated a previous Supreme Court decision which held that, under Equal Protection and Due Process principles, same sex couples had the same right to marry in California as opposite sex couples.
  3. The Attorney General advanced a different theory: that the “inalienable” right articulated by the Court in the Marriage Cases could not be abrogated by a majority vote unless there was a compelling state interest in doing so.

The Court rejected all three, holding that they were required to find that the Constitution could be amended by a majority of voters in any election, even if the amendment abrogated a fundamental right previously articulated by the Court.

How Could They Say That?
The Court set out the legal principle that distinguishes an amendment from a revision: That it must change the basic governmental plan or framework of the Constitution. In deciding whether Prop 8 did, indeed, change the Constitution at such a basic level, the Court decided it did not, and, also, that it did not “entirely repeal or abrogate” the rights articulated in the Marriage Cases.

This is where the Court seriously lost its way.

Marriage Is Just A Word….Not
Here’s what the majority opinion said, which I think is not only seriously in error, but a cowardly about-face from their language in the Marriage Cases, which is reprinted in the next section.

First: today’s decision:

“In analyzing the constitutional challenges presently before us, we first explain that the provision added to the California Constitution by Proposition 8, when considered in light of the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757 (which preceded the adoption of Proposition 8), properly must be understood as having a considerably narrower scope and more limited effect than suggested by petitioners in the cases before us. Contrary to petitioners’ assertion, Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right of privacy and due process that was analyzed in the majority opinion in the Marriage Cases - that is, the constitutional right of same-sex couples to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage” (Marriage Cases, supra, 43 Cal.4th at p. 829). Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion. Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.”

In other words….what’s the big deal about the word “marriage”?

As it turns out, quite a bit. Here’s what the same Court said about it in the Marriage Cases:

First, it set out the principle it quotes in the new opinion:

“In responding to the Attorney General’s argument, the majority opinion stated that “[w]e have no occasion in this case to determine whether the state constitutional right to marry necessarily affords all couples the constitutional right to require the state to designate their official family relationship a ‘marriage,’ ” because “[w]hether or not the name ‘marriage,’ in the abstract, is considered a core element of the state constitutional right to marry, one of the core elements of this fundamental right is the right of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other officially recognized family relationships.

But, then, the Court answers its own question as to the importance of the word Marriage:

“The current statutes - by drawing a distinction between the name assigned to the family relationship available to opposite-sex couples and the name assigned to the family relationship available to same-sex couples, and by reserving the historic and highly respected designation of marriage exclusively to opposite-sex couples while offering same-sex couples only the new and unfamiliar designation of domestic partnership _ pose a serious risk of denying the official family relationship of same-sex couples the equal dignity and respect that is a core element of the constitutional right to marry.”

It is a distinction that makes an enormous difference and, therefore, should be seen as a revision to the state’s Equal Protection and Due Process requirements.

By hanging its decision that Prop 8 was an amendment and not a revision on the slim and dishonest statement that same sex couples are not denied legal rights by denying them the “word” marriage, the Court errs.

Justice Moreno, in Dissent
Bless his heart and his mind. Here is what he says:

“The question before us is not whether the language inserted into the California Constitution by Proposition 8 discriminates against same-sex couples and denies them equal protection of the law; we already decided in the Marriage Cases that it does. The question before us today is whether such a change to one of the core values upon which our state Constitution is founded can be accomplished by amending the Constitution through an initiative measure placed upon the ballot by the signatures of 8 percent of the number of persons who voted in the last gubernatorial election and passed by a simple majority of the voters. (Cal. Const., art. II, § 8.) Or is this limitation on the scope of the equal protection clause to deny the full protection of the law to a minority group based upon a suspec
t classification such a fundamental change that it can only be accomplished by revising the California Constitution, either through a constitutional convention or by a measure passed by a two-thirds vote of both houses of the Legislature and approved by the voters? (Cal. Const., art. XVIII.)

For reasons elaborated below, I conclude that requiring discrimination against a minority group on the basis of a suspect classification strikes at the core of the promise of equality that underlies our California Constitution and thus “represents such a drastic and far-reaching change in the nature and operation of our governmental structure that it must be considered a ‘revision’ of the state Constitution rather than a mere ‘amendment’ thereof.” (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 221 (Amador Valley).) The rule the majority crafts today not only allows same-sex couples to be stripped of the right to marry that this court recognized in the Marriage Cases, it places at risk the state constitutional rights of all disfavored minorities. It weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority. I therefore dissent.”

Sheila KuehlMe, too.

Sheila James Kuehl

Sheila James Kuehl was appointed to the California Integrated Waste Management Board on December 1, 2008, after having served eight years in the State Senate and six years in the State Assembly. Senator Kuehl served as chair of the Senate Natural Resources and Water Committee from 2000-2006. Her website is

1st 10k down, maybe a half marathon by the end of the summer?

I ran my first 10k race today and I have to say, the race itself rocked even though the weather and the situation around it left a lot to be desired.

The weather at the start of the race sucked so bad, I was shivering in 50 degree weather in San Francisco! But that was only good for the first mile and a half or so… the rest was actually comfortably warm.

I completed the 10k in 1:12:21. The time was ok, specially considering the nightmare of a course we ran. but what’s more important to me is that I didn’t die, I was ready to keep going and that’s what’s important to me; to keep pushing through what I think is impossible.

In addition to the triathlons I may do a half marathon by the end of summer or by the end of the year if I’m not in the Bay Area after summer.

Indifference and the need for change

I can picture one day my grand children one day asking me where I was when the great tragedies of my generation happened and why didn’t I do something. It is easy to rationalize saying that I didn’t know and that it was too big, that there was nothing that I could have really done.

It's true that as individuals we don't know and that there is nothing that we can do, but it is also true that we are happy living in our little shell. But our little world does not excuse us from learning about others and to share on their suffering and to do something about it

C. S Lewis once wrote, "We must picture Hell as a state where everyone is perpetually concerned about his own dignity and advancement, where everyone has a grievance, and where everyone lives the deadly serious passions of envy, self importance and resentment."

Terrify no more - Gary Haugen

Taking Stock of Where You Are and How Far You’ve Come

"Only those who will risk going too far can possibly find out how far one can go." - T.S. Eliot

Damn that was good yesterday!!! Never thought that swimming in the bay was going to be so good without a wetsuit. It’s a great workout and the people you swim with are even more awesome; even worth the sunburn.  I think I’ll add a tri suit to the inventory before I try the water on the bay again… but that I’ll do it again there is not a *bleeping* doubt in my mind.

"The greatest pleasure in life is in doing what people say you cannot do." - Walter Bagehot

As I get closer and closer to a final decision regarding school/work (the choice will be made for me to a large extent) I think it’s a good time to take stock and see where I’m at physically as well. 

I survived the Menlo-Atherton Big Bear Run 5k 
After I finished the Big Bear Run

It wasn’t until I got out of the water on Sunday that I realized how awesome these past few months have been.  Among all the stress and all the worries I’ve made excellent friends, I’ve gained a running partner and I’ve discovered that my physical limits are much farther away than I ever thought they were.

Xavier, my trainer and his girlfriend 
Xavier, my trainer, and his significant other

As I’ve wrote before I haven’t really reached my limit, at least I don’t think I have yet.  depending on where I’m at geographically I may decide to train for a full Olympic triathlon or for a century ride… we’ll just have to wait and see.

Debbie, my running partner, in her fitness competition 
Debbie, my running partner, in her fitness competition