THE CALIFORNIA SUPREME COURT DECISION ON PROPOSITION 8: COWARDICE, STUPIDITY, OR CLEVERNESS?

California’s highest court hath spoken (perhaps “stammered” might be a better word choice). Here is the background. Last year (May 15, 2008), the same high court struck down a law passed by the legislature that banned gay marriage. In the language of the decision, the court raised sexual orientation to the same level as race and gender in weighing discrimination claims. Within months, the empire struck back with Proposition 8, a ballot initiative to amend the California Constitution and neutralize the court’s earlier decision. Prop 8 passed by 52% of the popular vote.

This time, California’s highest court caved to voters in a ruling that raises more questions and contradictions than before.  Here are excerpts of the ruling:

Regardless of our views as individuals on this question of policy, we recognize as judges and as a court our responsibility to confine our consideration to a determination of the constitutional validity and legal effect of the measure in question (…) setting aside our own personal beliefs and values [p. 3].

Contrary to petitioners’ assertion, Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right of privacy and due process that was analyzed in the majority opinion in the Marriage Cases — that is, the constitutional right of same-sex couples to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage” (...) Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion [p. 7].

Finally, we consider whether Proposition 8 affects the validity of the marriages of same-sex couples that were performed prior to the adoption of Proposition 8. 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 and must continue to be recognized in this state [p.13].

If I understand this ruling correctly, 18,000 gay couples get to keep their marriages but no future marriages will be recognized in California unless the State Constitution is amended yet again or the decision is struck down by a Federal court. In other words, some gay couples end up more privileged than others, but, somehow, the ruling does not violate equal protections under the State Constitution or the 14th amendment of the U.S. Constitution. What an amazing feat of twisted logic!

If one fully appreciates the internal contradiction of the ruling, perhaps the California high court has cleverly inserted self-destruct language that will eventually deconstruct the ruling. Cowardice, stupidity, or cleverness? How do you see it?