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Excerpts from the California Supreme Court ruling upholding Prop. 8

May 27, 2009

Here are some key passages from the California Supreme Court's 185-page ruling upholding Proposition 8:

On Proposition 8 as a constitutional amendment:

"It is not our role to pass judgment on the wisdom or relative merit of the current provisions of the California Constitution governing the means by which our state Constitution may be altered. . . . In the absence of an explicit subject-matter limitation on the use of the initiative to propose and adopt constitutional amendments, . . . we conclude the existing provisions of the California Constitution governing amendment and revision cannot properly be interpreted in the manner advocated by petitioners.

"Accordingly, we hold that Proposition 8 constitutes a constitutional amendment rather than a constitutional revision."

-- from the majority opinion, written by Chief Justice Ronald M. George and signed by Associate Justices Joyce L. Kennard, Marvin R. Baxter, Ming W. Chin and Carol A. Corrigan

On Proposition 8 violating the equal protection clause:

"Describing the effect of Proposition 8 as narrow and limited fails to acknowledge the significance of the discrimination it requires. But even a narrow and limited exception to the promise of full equality strikes at the core of, and thus fundamentally alters, the guarantee of equal treatment that has pervaded the California Constitution since 1849. . . .

"In my view, the aim of Proposition 8 and all similar initiative measures that seek to alter the California Constitution to deny a fundamental right to a group that has historically been subject to discrimination on the basis of a suspect classification, violates the essence of the equal protection clause of the California Constitution and fundamentally alters its scope and meaning.

"Such a change cannot be accomplished through the initiative process by a simple amendment to our Constitution enacted by a bare majority of the voters; it must be accomplished, if at all, by a constitutional revision to modify the equal protection clause to protect some, rather than all, similarly situated persons."

-- from Associate Justice Carlos R. Moreno's concurring and dissenting opinion

On complaints that it is too easy to amend the California Constitution:

"In a sense, petitioners' and the Attorney General's complaint is that it is just too easy to amend the California Constitution through the initiative process. But it is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it. If the process for amending the Constitution is to be restricted . . . this is an effort that the people themselves may undertake through the process of amending their Constitution in order to impose further limitations upon their own power of initiative."

-- from the majority opinion

On rights retained by same-sex couples under Proposition 8:

"Although Proposition 8 eliminates the ability of same-sex couples to enter into an official relationship designated 'marriage,' in all other respects those couples continue to possess, under the state constitutional privacy and due process clauses, 'the core set of basic substantive legal rights and attributes traditionally associated with marriage.' . . . Like opposite-sex couples, same-sex couples enjoy this protection not as a matter of legislative grace, but of constitutional right. . . .

"Thus, except with respect to the designation of 'marriage,' any measure that treats individuals or couples differently on the basis of their sexual orientation continues to be constitutionally 'suspect' under the state equal protection clause and may be upheld only if the measure satisfies the very stringent strict-scrutiny standard of review that also applies to measures that discriminate on the basis of race, gender, or religion."

-- from the majority opinion

On the state's obligations to same-sex couples:

"All three branches of state government continue to have the duty . . . to eliminate the remaining important differences between marriage and domestic partnership, both in substance and perception. The measure puts one solution beyond reach by prohibiting the state from naming future same-sex unions 'marriages,' but it does not otherwise affect the state's obligation to enforce the equal protection clause by protecting the 'fundamental right . . . of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other official recognized family relationships.' . . .

"For the state to meet its obligations under the equal protection clause will now be more difficult, but the obligation remains."

-- from Associate Justice Kathryn Mickle Werdegar's concurring opinion

On Atty. Gen. Jerry Brown's argument that Proposition 8 took away inalienable rights:

"No authority supports the Attorney General's claim that a constitutional amendment adopted through the constitutionally prescribed procedure is invalid simply because the amendment affects a prior judicial interpretation of a right that the Constitution denominates 'inalienable.' The natural-law jurisprudence reflected in passages from the few early judicial opinions relied upon by the Attorney General has been discredited for many years."

-- from the majority opinion

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