Legal Analysis of Tuesday’s California Prop. 8 Ruling by the California Supreme Court


For Immediate Release
Contact: President Brad Dacus (916) 857-6900

logoLegal Analysis of Today’s Prop. 8 Ruling

Sacramento, CA – Attorneys with Pacific Justice Institute have reviewed today’s highly-anticipated decision from the California Supreme Court upholding Proposition 8. PJI submitted several legal briefs to the Court in defense of Prop. 8, and offers the following assessment of the 186-page opinions.

The majority opinion was written by Chief Justice Ronald George, who also wrote last year’s opinion declaring unconstitutional Prop. 8′s predecessor, Prop. 22. Today’s majority opinion was joined by Justices Joyce L. Kennard, Marvin R. Baxter, Ming W. Chin, and Carol A. Corrigan. Justice Kathryn M. Werdegar reluctantly agreed with the majority’s conclusion, but not its reasoning, so she wrote separately to express her own views. Justice Carlos R. Moreno was the lone dissenter. Chief Justice George’s majority opinion alone carries the force of law.

The 136-page majority opinion begins by emphasizing that the Court was not called upon to decide whether Prop. 8 was wise or sound as a matter of policy, but only whether Prop. 8 was a valid amendment to the state Constitution, rather than a revision, which would have required additional approval by the legislature.

The court considered numerous prior decisions that discussed the distinction between amendments and revisions to the state constitution. The court determined that a revision “referred to the kind of wholesale or fundamental alteration of the constitutional structure that appropriately could be undertaken only by a constitutional convention.” The Petitioners in the present case had argued that Prop. 8 was a revision because it altered a fundamental aspect of the state constitution-equality. The court disagreed, holding that Prop. 8 does not “fundamentally alter” basic equal protection guarantees, or for that matter, the rights of same-sex couples to privacy or due process in choosing relationships that have the “incidents of marriage.”

The court also rejected the novel arguments offered by Attorney General Jerry Brown that Prop. 8 should be struck down because “inalienable” constitutional provisions – such as the right to privacy – should supersede other constitutional provisions, such as Prop. 8. The court noted that there was no legal authority to support this theory.

The court then addressed the validity of the gay weddings conducted after its opinion last summer, and the enactment of Prop. 8 on November 4. The court held that Prop. 8 was not retroactive, and therefore those same-sex unions would continue to be considered valid marriages. On this holding, all the justices agreed. The court specifically did not decide the validity in California of same-sex marriages entered into in other states, such as Massachusetts.

In a concurring opinion, Justice Kennard, who previously voted to strike down Prop. 22, emphasized that this case was different because the court had previously been interpreting a statute in light of the state constitution, whereas it now was dealing with the enactment of a new constitutional provision. She explained, “Interpretation of existing statutory and constitutional provisions is a fundamental power of the judicial branch, while alteration of existing statutory and constitutional provisions – by addition, deletion, or modification – is a fundamental legislative power that the people may exercise through the judicial process.”

In another concurring opinion, Justice Werdegar reluctantly agreed with the majority’s conclusion, but disagreed that the amendment/revision question should turn on whether an initiative affected the structure or framework of government.

In his separate opinion, Justice Moreno concurred with the court’s unanimous decision that Prop. 8 was not retroactive, but he dissented from its holding that Prop. 8 was a valid constitutional amendment. He blasted the majority – and the voters – writing, “Proposition 8 represents an unprecedented instance of a majority of voters altering the meaning of the equal protection clause by modifying the California Constitution to require deprivation of a fundamental right on the basis of a suspect classification.” Justice Moreno warned that today’s decision endangers the rights of “all disfavored minorities.”

Pacific Justice Institute has advised hundreds of churches as to their legal rights to adhere to the definition of marriage prescribed by their faith. PJI has also offered legal assistance to individuals who have been blacklisted, terminated from their jobs, or had their property defaced by anti-Prop. 8 activists.


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