At 10 AM today, the California Supreme Court officially put an end to a miserable waste of time. Proposition 8 has been upheld! Yes, that’s right folks, the thing we should have stopped talking about last November has finally been officially given the California Supreme Court’s “repentant judicial activists” seal of approval! In a truly daring show of Constitutional originality, the Court has ruled that a constitutional amendment is not unconstitutional. Yes, that’s right. The State Constitution is constitutional.
What a surprise.
One need not have any love for Proposition 8 to support this decision, for a very simple reason: unlike the passage of Proposition 8, this is not a thumbs down decision on the desirability of gay marriage, but rather a thumbs up decision on a much more important concept – namely, the rule of law. Proposition 8, whatever one thinks of it, was passed by a majority, will not reduce the functionality of California’s State Government (unlike some other propositions) or its economy (again, unlike others), and even if it did, it would still have to be enforced until such a time as the State could either make an unconvincing excuse for not enforcing it, or until the voters repeal it. That’s the way it works in any State, California included, and those who disapprove of either Proposition 8 or the decision upholding it should alter their strategy accordingly, since their appeal to the Court (thankfully) went unheeded.
And not only did it go unheeded, it went unheeded by a blistering 6-1 margin. However, despite this, the decision itself has an interesting qualification – all the same-sex unions performed BEFORE Proposition 8 still stand. From a legal standpoint, this is also a correct decision, as it upholds the key legal principle that laws cannot be applied ex post facto. This qualification, however, is just the tip of the iceberg when it comes to the overall subtlety of the decision. To quote from the opening of the official opinion, “the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes, but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which…the union of an opposite-sex couple is officially designated a ‘marriage’ whereas the union of a same-sex couple is officially designated a ‘domestic partnership.'”
To translate that out of lawyer speak, the question isn’t whether gay marriage is good or bad, but rather whether the voters are permitted to make an official decision on that question, especially if one considers that the only issue at stake is nomenclature. For those suffering from temporary amnesia induced by crusading spirit, please recall that in the status quo, gay couples enjoy all the legal privileges which married couples enjoy, with only one exception – the formality of having their union referred to as a “marriage.” This has almost no implications for the rights of the couple, but drastic implications for the State’s protections for freedom of association. For instance, before Proposition 8, photographers could be forced to photograph “married” homosexual couples despite religious objections on the grounds of “discrimination.” Such blatant violations of freedom should be opposed by anyone concerned with civil liberties, rather than with a mad dash toward totalizing egalitarianism.
And thanks to today’s decision, that is a question we can finally debate honestly, rather than living in fear of riots, activist intimidation and unilateral judicial imposition of non-constitutional values. The California Supreme Court should be congratulated on realizing they were wrong to try to interfere in marriage in the first place – too bad it took an official electoral reprimand, but such is the fate of unwarranted power grabs. In any case, Proposition 8 is law. The court says so. Now let’s all go home.