California Supreme Court Upholds Same-Sex Marriage Ban – While Former Foes Olson and Boies Team up to Challenge Prop. 8 in Federal Court

On Tuesday, the California Supreme Court, in Strauss v. Horton, 2009 Cal. LEXIS 4626 (Cal. May 26, 2009), upheld Proposition 8, which was approved by the voters last fall and banned same-sex marriages in California. The decision, though, leaves intact the 18,000 same-sex marriages that were solemnized after the Supreme Court had thrown out the Legislature’s original same-sex marriage ban in In re Marriage Cases, 43 Cal. 4th 757 (Cal. 2008),
 
The Supreme Court pointed out that it was not ruling on the wisdom of the public policy regarding same-sex marriages. “[O]ur task in the present proceeding is not to determine whether the provision at issue is wise or sound as a matter of policy…. the principal issue before us concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process so as to incorporate such a limitation as an explicit section of the state Constitution.”
 
The opponents argued that Proposition 8 was invalid because the authority to enact revisions to the Constitution rested solely with the Legislature, and only amendments could be enacted by the vote of the people. The Supreme Court found that Proposition 8 “constitutes a constitutional amendment rather than a constitutional revision….the act of limiting access to the designation of marriage to opposite-sex couples does not have a substantial or, indeed, even a minimal effect on the governmental plan or framework of California.”
 
The opponents further asserted that even if Proposition 8 did not affect the governmental plan or framework, it was a revision because it conflicted with the fundamental constitutional principle that protected a minority group from having its constitutional rights diminished by majority vote. The Supreme Court rejected that argument as well. “Petitioners, however, cannot point to any authority supporting their claim that under the California Constitution, a constitutional amendment -- proposed and adopted by a majority of voters through the initiative process -- cannot diminish in any respect the content of a state constitutional right as that right has been interpreted in a judicial decision.”
 
The Supreme Court, though, did find that Proposition 8 was not retroactive. “Applying well-established legal principles pertinent to the question whether a constitutional provision should be interpreted to apply prospectively or retroactively, we conclude that the new section cannot properly be interpreted to apply retroactively. Accordingly, the marriages of same-sex couples performed prior to the effective date of Proposition 8 remain valid.”
 
Justice Moreno was the lone dissenter. “Proposition 8 represents an unprecedented instance of a majority of voters altering the meaning of the equal protection clause by modifying the California Constitution to require deprivation of a fundamental right on the basis of a suspect classification. The majority's holding is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution…. In my view, the aim of Proposition 8….violates the essence of the equal protection clause of the California Constitution and fundamentally alters its scope and meaning.”
 
In a related lawsuit that possibly anticipated the California Supreme Court’s ruling, Perry v. Schwarzenegger, CV-09-2292 (N.D. Calif. May 22, 2009), was filed last Friday. Two former courtroom foes, Ted Olson, who represented President Bush in the 2000 election litigation, and David Boies, who represented Vice President Gore in that same litigation, filed the lawsuit. The action seeks a declaration that Proposition 8 is unconstitutional under the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution. It requests a preliminary and permanent injunction against enforcement of Proposition 8 and the legislation that was voided in In re Marriage Cases.
 
Some proponents of same-sex marriage voiced opposition to the filing of Perry this week, expressing concern that the federal courts might not yet be the proper forum because of the potential for an adverse future decision by the United States Supreme Court. Olson and Boies, though, said that they think the time is right to engage the federal courts and that they hope that Perry does eventually reach the United States Supreme Court.
 
Only time will tell, of course. The prominent issue in Perry will likely rest on the issue of states’ right. Although Justice Souter might have been a vote in favor of same-sex marriages, it is likely that future Justice Sonia Sotomayor is a stronger vote for same-sex marriages and may be a stronger and more persuasive voice in the Supreme Court’s deliberations. If President Obama is given the opportunity in the next two or three years to appoint a successor to one of the justices in the present 5-4 majority voting scheme, Olson and Boies may be correct in their timing. And one could speculate further. If the Supreme Court is reconstituted to a new 5-4 voting scheme, then one has to wonder whether Chief Justice Roberts, thinking about maintaining his leadership role in a Supreme Court in which he would be now in the minority and about his legacy as the Chief Justice, might decide to go with the majority, even writing the majority decision, in finding that same-sex marriage is constitutionally protected. That may seem farfetched today, but Chief Justice Warren’s efforts to craft the one voice of the Court in Brown v. Board of Education and Chief Justice Burger’s similar efforts in crafting the one voice of the Court in the decision that ultimately resulted in the resignation of President Nixon might be the roadmap that Chief Justice Roberts would decide to follow.
 
 
The complaint in Perry v. Schwarzenegger is available here.