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Understanding the California Supreme Court’s Prop 8 Ruling

On May 26, the California Supreme Court issued it’s “Proposition 8” (Prop 8) consolidated ruling on cases contesting the constitutionality under the California Constitution of the Prop 8 California ballot referendum. This referendum purported to ban same-sex marriage in California and had passed by a 52% to 48% vote on election day in November, 2008. Prop 8 had been a reaction to the California Supreme Court’s deeming same-sex marriage a fundamental constitutional right in an earlier 2008 decision (In re Marriage Cases).

Following passage of the referendum, opponents of Prop 8 immediately sued, arguing that a fundamental constitutional right (in reliance upon which 18,000 same-sex couples had already been married) could not be revoked by a majority vote. To allow such would put in jeopardy any minority right protected by the California Constitution.

In Tuesday’s ruling, the Court allowed Prop 8 to stand, but only by limiting its effect to mere symbolism. The important issue was whether Prop 8 embodied a constitutional revision (a substantial change – not allowed outside of a constitutional convention) or a constitutional amendment (a minor change properly the subject of a referendum).

The Court held that Prop 8 was a proper amendment, but (because) it did not alter any substantive rights of same-sex couples (to equal treatment and protection under the law). Prop 8’s only accomplishment was “reserving the official designation of the term ‘marriage’ for the union of opposite-sex couples as a matter of state and constitutional law.”  

So it’s semantics. Despite Prop 8, same-sex couples can obtain all the rights and privileges under the law as opposite-sex couples, but the certificate issued by California to commemorate their union will say “Domestic Partnership” or “Civil Union” at the top, rather than “Marriage.” Nothing else — at all — is changed. And the 18,000 couples married prior to this decision? They keep the designation of “Marriage.”

If it walks, talks and looks like a duck … it’s a duck. Distinctions without a difference don’t tend to last, and (considering demographic trends) this distinction probably won’t survive future referenda aimed at eliminating it.