LA Times: Answers to questions about Prop 8 ruling

27 May 2009
Los Angeles Times


Answers to questions about Prop. 8 ruling

Details and implications of the California Supreme Court ruling
By Rong-Gong Lin II

The Times answers readers’ questions about Tuesday’s ruling upholding Proposition 8, the voter-approved constitutional amendment banning same-sex marriage.

On what grounds did the California Supreme Court uphold Proposition 8?

Opponents of the proposition asked the court to overturn the ballot measure on the grounds that banning same-sex marriage changed the tenets of the state Constitution and therefore amounted to a revision, which can be placed on the ballot only by a two-thirds vote of the Legislature. Proposition 8 reached the ballot after a signature drive.

In Tuesday’s ruling, the court said Proposition 8 “adds but a single, simple section to the Constitution” and therefore was a constitutional amendment and not a revision.

How can the California Supreme Court rule that gay marriage is legal and then turn around and uphold the initiative that banned it?

In May 2008 the court ruled that the state Constitution at that time protected a fundamental “right to marry” that extended to same-sex couples. But Tuesday, a court majority wrote that the California Constitution “explicitly recognizes the right of the people to amend their state Constitution through the initiative process.”

Can an appeal be made to the California Supreme Court to reconsider its opinion?

A majority of the court wrote that further reconsideration of the legality of same-sex marriage needs to be done at the ballot box. But Proposition 8 is expected to be challenged in federal court.

If I was married in Canada before Proposition 8 was passed, am I still considered married in California under this new decision?

It’s unclear. The court did not address whether California will continue recognizing same-sex marriages that were officiated legally in Massachusetts, Canada or elsewhere before Proposition 8 passed.

Will California recognize future gay marriages officiated elsewhere?

No. Proposition 8 says, “Only marriage between a man and a woman is valid or recognized in California.”

Can voters decide to reinstate slavery or make murder legal? If not, why can they take away the right of gay couples to marry?

California voters could, if they wanted, repeal all of the state’s anti-murder criminal laws, the same way they decriminalized marijuana use for medicinal purposes, UC Davis law professor Vikram D. Amar wrote in an e-mail response to a question from The Times.

But voters would not be able to reinstate slavery because that is forbidden by the U.S. Constitution. “We really have two backdrop safety nets: the U.S. Constitution, and the general, common sense of the people not to do anything too stupid or mean, Prop. 8 notwithstanding,” Amar wrote.

Does the decision take away other rights granted to married same-sex couples?

No. The justices ruled that for same-sex couples the measure does not rescind ” ‘the core set of basic substantive legal rights and attributes traditionally associated with marriage,’ such as the right to establish an officially recognized and protected family relationship with the person of one’s choice and to raise children within that family.” Same-sex couples can register as domestic partners in California, which gives them virtually all the legal benefits that marriage provides in the state.

Can gay California couples legally marry in Massachusetts or Canada?

Such couples can be married in states or nations where it is legal, but California will not recognize those unions.

What did the court say about the arguments of some that it’s too easy to amend the California Constitution?

The court said it is constitutionally bound to uphold the initiative process in the state Constitution. “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.”


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