Home -> Law Blog Directory -> Academic Blogs -> The Faculty Lounge

Academic

: The Faculty Lounge

California Supreme Court Upholds Prop 8 as a Valid Amendment

By Calvin Massey

    The California Supreme Court, in Strauss v. Horton, has upheld the validity of Proposition 8 as a valid amendment to the state constitution.  In doing so it stressed that Proposition 8, which added a new section to the constitution specifying that marriage is only between a man and a woman, does no more than prevent the use of the term "marriage" to denote the union of a same-sex couple.  The Court reasoned that Prop 8 did not disturb the conclusion of the California Supreme Court in the Marriage Cases that governmental discrimination on the basis of sexual orientation is a suspect classification subject to strict scrutiny, nor did it disturb the more specific conclusion that California's constitutional guarantee of equal protection requires that same-sex couples receive official recognition and protection of their unions on a substantively equal basis with marriages.  The Court also ruled that the measure was not retroactive, so the 18000 or so same-sex unions that occurred between June and November of 2008 will still be called marriages.   This represents a victory for gay rights advocates, though it will not likely be so  portrayed or acknowledged.  After the dust has settled same-sex unions will receive absolutely the same legal status and protection as marriages, and state discrimination on the basis of sexual orientation will continue to be presumed to be invalid and subject to the most stringent test for justification of such discrimination.  Protests about the decision are misguided; it has absolutely nothing to do with the question of whether it is right or wrong to withhold the label of  "marriage" from same-sex couples, but is a faithful application of a large body of California constitutional law finding such "rifle-shot" changes to the state constitution to be amendments rather than revisions.  

Full post as published by The Faculty Lounge on May 26, 2009 (boomark / email).