Strange California Supreme Court decision – gay marriage

California’s Proposition 8 amended the state’s Constitution to restrict the definition of marriage to opposite sex couples and a case was brought to California’s Supreme Court. In a 6 to 1 decision, the court upheld Prop 8 as law.

The big question is why the court elected to let stand the 18,000-plus same sex marriages that took effect prior to Prop. 8 becoming law.

I’m no lawyer, but does this decision – allowing the 18,000 same sex marriages to stand – cause an issue with the equal protection clause?

The story is at Fox News

The California Supreme Court on Tuesday upheld same sex marriages that were already performed but upheld voters’ rights to ban gay marriage through the state constitution.

An estimated 18,000 gay couples tied the knot before the law took effect. The ruling suggests that gay couples can be afforded equivalent rights to heterosexual married couples but perhaps under a different name.

Malkin has more here and the not-so-unexpected liberal bias from the San Fransisco Chronicle here. Ed at Hot Air is fully back from holiday and has commentary. Volokh Conspiracy has more on the legal stuff.

The California Supreme Court justified its earlier decision recognizing same-sex marriages by reference to the California Constitution, which in turns draws its authority from having been enacted by the people.

So let’s get this straight.

  1. Prop 22 (2000) prevents California from recognizing same-sex marriage. (You forgot about that one didn’t you?) It passed by an almost 2 to 1 margin.
  2. In 2004, San Francisco Mayor Gavin Newsom says “screw you” to the California voters and starts issuing same-sex marriage licenses.
  3. In May of 2008, liberal activists go to a courtroom and get Prop 22 invalidated.
  4. Prop 8 goes on the ballot.
  5. Liberal activists go to a courtroom to block the proposition from going on the ballot.
  6. Prop 8 passes by about 4.5 percent. A simple majority is all that is required to change California’s Constitution.
  7. Liberal activists go to a courtroom to invalidate the amendment to the California Constitution (Prop 8). They do not succeed.

Where next?

Are we seeing the theme here? Same-sex marriage advocates understand they have not been able to win the normal way, so they just keep their efforts to the courts, where they only need to rely on a few liberal justices to swing their way.

In the case of Prop 8, they bullied people into voting their way. How else can you explain the 10 point drop in support for the propositions? OK, maybe opinion changed, but what caused the opinion to change – you’ve got to ask the question.

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Steve McGough

Steve's a part-time conservative blogger. Steve grew up in Connecticut and has lived in Washington, D.C. and the Bahamas. He resides in Connecticut, where he’s comfortable six months of the year.


  1. Dimsdale on May 26, 2009 at 11:47 am

    Just like Massachusetts.  They claim that the population is behind them (I know…), but refuse to let them vote on it, preferring to use the liberal courts to make it legal without legislation or a vote.

    And the funny thing is, it was the huge jump in black voters that kicked the vote for Prop 8 over the top.  Kinda ironic, no?

  2. Dimsdale on May 26, 2009 at 11:49 am

    Oh, and don't forget the post vote bullying, i.e. the harrassment of supporters of Prop 8 and boycotting of businesses that gave campaign contributions.

    Now if Republicans did that, oooooh boy, what an outcry there would be!

  3. Wayne SW on May 27, 2009 at 1:59 am

    When the dust settles, will I be able to marry my favorite Moose and my Pet Rock?

  4. Erik Blazynski on May 27, 2009 at 2:00 am

    It is just a matter of time before California allows gay marriage, and every state allows gay marriage.

  5. Bill on May 27, 2009 at 1:39 pm

    Let's see, will the proponents of same sex marriage be as eager to endorse polygamy?  Oh of course they will when they find that Muslim doctrine encourages it.

    No wait, what about the Mormons?   Could it get confusing? 

    Even ACLU lawyers will wonder which societal undermining group they should defend and champion.  Won't this be fun?

  6. skepticalcynic on May 28, 2009 at 9:04 am

    Can someone explain to me how a "libertarian" can be AGAINST gay marriage?

    And until we STOP screwing up close to 50% of our traditional marriages, can we give it a rest when it comes to the sanctity of marriage?  Its a joke.  We can give a rats azz about vows UNTIL two guys or two woman want to give it a shot.  I DIDN'T believe gay marriage, BUT I admit, its getting harder and harder to defend traditional marriage as something special.  Maybe it WAS, once.  But not now.  People bust my chops about my pushing the importance of vows and promises for years now.  Maybe I just give up.

    • Steve McGough on May 28, 2009 at 9:18 am

      I would think a libertarian would be against the state being involved with any of it. Why do they have to be involved in registrations of marriages or civil unions at all? Maybe leave marriage as traditionally defined, let others do the civil route (a contract with the state not being part of it)?

      That said, many think the declining state of affairs, lower expectations for minority youths can be tied to the break up of the traditional family. Is the traditional family a good thing, a bad thing, or does it matter at all? Walter Williams has written about this.

      So maybe the state does have a roll in supporting traditional marriage and supporting it since – some would say – civilization (the success of kids and future generations) partly depends on it.

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