SAN FRANCISCO (AP) | The California Supreme Court upheld a voter-approved ban on same-sex marriage Tuesday, but it also decided that gay couples who tied the knot before the law took effect will stay wed. Demonstrators outside the court yelled “shame on you!” Gay rights activists immediately promised to resume their fight, saying they would go back to voters as early as next year in a bid to repeal the ban.
The 6-1 decision written by Chief Justice Ron George rejected an argument by gay rights activists that the ban revised the California Constitution’s equal protection clause to such a dramatic degree that it first needed the Legislature’s approval.
The court said that Californians have a right, through the ballot box, to change their 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,” the ruling said.
The justices said the majority ruling does not speak to whether they agree with the voter-approved Proposition 8 or “believe it should be a part of the California Constitution.”
The court also ruled that there was no clear indication in Proposition 8 that the voters intended the amendment to apply retroactively.
That provided some relief for the estimated 18,000 gay couples who married in the brief time same-sex marriage was legal last year, but it wasn’t enough to dull the anger over Tuesday’s ruling.
“We’re relieved our marriage was not invalidated, but this is a hollow victory because there are so many that are not allowed to marry those they love,” said Amber Weiss, who married her partner, Sharon Papo, on the first day gay marriage was legal last year, June 17.
“I feel very uncomfortable being in a special class of citizens,” Papo said.
Many same-sex couples had rushed to get married before the November vote on Proposition 8, fearing it could be passed. When it was, gay rights activists went back to the court arguing that the ban was improperly put to voters and amounted to a revision “which required legislative approval” not an amendment.
That was the issue justices decided Tuesday, concluding that “Proposition 8 constitutes a constitutional amendment rather than a constitutional revision.”
Justice Carlos Moreno wrote the dissenting opinion disagreeing that the proposition did not change the constitution’s equal protection clause.
“Promising equal treatment to some is fundamentally different from promising equal treatment for all,” said Moreno, who has been mentioned as a possible contender for the U.S. Supreme Court. Denying same-sex couples the right to wed “strikes at the core of the promise of equality that underlies our California Constitution,” said Moreno.
