California Supreme Court Upholds the Will of the People

Court Rules that Prop. 8’s Ban on Same-Sex Marriage Is Constitutional

WASHINGTON, May 26, 2009—Today, the California Supreme Court ruled that the state's voters had the right under the California Constitution to amend their Constitution to prohibit same-sex marriage.

"The Supreme Court of California has upheld the right of California voters to amend their state's constitution," said Vincent McCarthy, senior attorney with the American Center for Law and Justice.  "The court did its job in protecting the democratic process in California."

At the same time, the Court validated the some 18,000 same-sex unions performed during the period between the court's ruling that prohibition of same-sex marriage was unconstitutional and the passage of Proposition 8, which prohibited same-sex marriage.  (Strauss v. Horton; Tyler v State of California; City and County of San Francisco v Horton)

California's Proposition 8 (Prop. 8), which prohibited same-sex marriage in California, was passed by the voters of California last November in response to a prior decision of the California Supreme Court holding that California's statutory denial of same-sex marriage was unconstitutional.  In essence, then, the voters of California overturned a decision of its Supreme Court. 

Following November's election results, the pro same-sex marriage lobby challenged Prop. 8 in the California Supreme Court.  Same-sex marriage advocates argued that Prop. 8 was a disguised attempt to revise rather than amend the California Constitution and was therefore unconstitutional for lack of compliance with certain technical requirements for enacting revisions rather than amendments to the Constitution. The Attorney General of California sided with the same-sex marriage proponents and argued that Prop. 8 violated the Equal Protection Clause of the California Constitution as to a discrete and insular minority and therefore was itself unconstitutional under the State of California Constitution.

The American Center for Law and Justice (ACLJ), the nation's top conservative public interest law firm, filed a brief at the California Supreme Court in the Prop. 8 case representing itself and several members of the California congressional delegation.  The ACLJ argued that Prop. 8 was properly construed as an amendment to the California Constitution because it did not substantially change the constitution but rather modified only one small part of it in several sentences.  Previous California Supreme Court decisions had held that a change to the Constitution had to be pervasive and substantial to constitute a revision rather than an amendment.  The ACLJ supported this position with examples of other initiatives similar to Prop. 8 that were ruled by the court to be amendments.
 

Also before the Court was the issue of what to do with the marriages that were performed after the Supreme Court of California issued its decision holding that the prohibition of same-sex marriage was unconstitutional and before Prop 8. was passed. It was argued generally by those who oppose same-sex marriage, that these marriages cannot be legal given the fact that the people of California subsequently voted to prohibit same-sex marriages. They argued that if same-sex marriage violates the Constitution in 2008, it violates the constitution at all times. Those who support same-sex marriage argued that same-sex partners who married relied upon the decision of the California Supreme Court, which ruled that the prohibition of same-sex marriage was unconstitutional and therefore, because Prop. 8 had not yet been passed, their marriages should remain valid. In other words since their marriages were valid at the time of marriage they are valid for all time. The court ruled that the marriages should stand because Prop. 8 did not specifically state that it was to be applied retroactively. 

Led by Chief Counsel Jay Sekulow, the American Center for Law and Justice focuses on constitutional law and is based in Washington, D.C.  The ACLJ is online at www.aclj.org.  The ACLJ's online newsroom - with high-res, downloadable graphics, principal bios, ACLJ fact sheets, etc. - can be accessed at www.DeMossNews.com/aclj.

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