Calif. Supreme Court upholds 'gay marriage' ban, Prop 8

by Michael Foust, posted Tuesday, May 26, 2009 (5 years ago)

SAN FRANCISCO (BP)--The California Supreme Court Tuesday upheld a citizen-enacted ban on "gay marriage," capping one of the most significant victories in the history of the social conservative movement but also setting up what is certain to be an effort by opponents to overturn it.

Proposition 8, as it is known, passed by a margin of 52-48 percent on Election Day, reversing a May 2008 ruling by the high court that had legalized "gay marriage." After Prop 8 passed, opponents quickly filed suit, arguing that the amendment amounted to a "revision" of the constitution and should first have been approved by the legislature, which it was not.

But the court in its Tuesday ruling disagreed, and by a 6-1 margin said the citizens had the right to pass the amendment, which states that "only marriage between a man and a woman is valid and recognized in California." In a partial win for homosexual activists, the court unanimously allowed the 18,000 or so marriages between same-sex couples already in existence on Election Day to stand. Based on oral arguments, both rulings were expected.

"[W]e conclude that the California Constitution cannot be interpreted as restricting the scope of the people's right to amend their Constitution in the manner proposed by petitioners," California Chief Justice Robert M. George wrote for the majority.

Just one year earlier, the justices, in a 4-3 decision written by George, legalized "gay marriage."

"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," George wrote. "It bears emphasis in this regard that our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values."

California is the first state to legalize "gay marriage" only later to reverse course and rescind the law. Conservatives in Maine hope to follow suit either this year or next when citizens there likely will decide whether to overturn a "gay marriage" law passed by the Democratic legislature and signed by the Democratic governor.

"We're very grateful for what God has done and to see that the vote of the people has been upheld," Chris Clark, pastor of East Clairemont Southern Baptist Church in San Diego, told Baptist Press. Clark was part of a coalition of pastors statewide that promoted Prop 8. "This is a government of the people, by the people and for the people, and when the people feel that there's a branch of government that is not representing them properly, it is their right and responsibility to take it back and let their voice be heard."

California is one of 30 states to pass a constitutional marriage amendment. Including California's, the 30 amendments have passed by an average margin of 68-32 percent.

Prop 8 supporters needed 690,000 signatures to qualify the proposal for the ballot and turned in approximately 1.1 million. The campaign was the most expensive one in U.S. history on a social issue, with each side raising more than $40 million.

"We are very gratified that the California Supreme Court has upheld Proposition 8," Andrew Pugno, an attorney representing ProtectMarriage.com, the group behind the amendment, said in a statement. "This is the culmination of years of hard work to preserve marriage in California. Hundreds of thousands of volunteers worked diligently to uphold the institution of marriage. Twice, voters have decided that marriage in California should be only between a man and a woman. We are extremely pleased that the Supreme Court has acknowledged the right of voters to define marriage in the California Constitution. The voters have decided this issue and their views should be respected."

There likely will be a second round in the coming years, perhaps as soon as 2010. Equality California, a homosexual activist organization, already was requesting donations in light of the court's ruling. "We will overturn Prop 8, but only with your support," a statement said. The organization, though, acknowledged the significance of the court's ruling. "Our worst fears have come to pass," it said.

Prop 8 opponents likely will conduct their own polling to determine when to try and place a pro-"gay marriage" amendment on the ballot. Supporters of Prop 8 say that opponents will be hard-pressed to find a more favorable environment than they had last fall, with a popular Democratic presidential nominee on the ballot who opposed Prop 8. But, on the flip side, the black voters who came out in droves to vote for then-candidate Barack Obama may not come out in such numbers in 2010, when he's not on the ballot. Exit polls showed 70 percent of blacks backing Prop 8.

The latest public poll has good news for conservatives: A Public Policy Institute of California survey of 2,004 adults in March showed that by a margin of 49-45 percent, Californians oppose "gay marriage."

"Those polls typically underreport what is actually occurring," Clark said. "And with continued efforts in educating and continuing to point out the merits of traditional marriage, I see us as being able to hold this ground."

Clark also said the Prop 8 victory shows what can happen when Christians participate.

"Our Founding Fathers created a government like this for the express purpose of the citizens to step up and participate," he said. "It's our responsibility as followers of Jesus to be good citizens. We have a role here."

Maggie Gallagher, president of the National Organization for Marriage -- which worked to pass Prop 8 -- said in a statement that "marriage is worth protecting because it is the way we teach the next generation: children need mothers and fathers."

"This victory for Prop 8 is a victory for children, for civil rights, and for the common good," she said.

Compared to many other states -- not to mention the federal Constitution -- the California constitution is relatively easy to change and has been amended more than 500 times since it was written in 1879. By comparison, the U.S. Constitution has been amended only 27 times.


Michael Foust is an assistant editor of Baptist Press.

To read how "gay marriage" impacts parental rights and religious freedom click here.

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