Prop 8’s victory, reinstating ban on same sex marriage, is big loss for California Supreme Court, but damage not irreparable

By Peter Scheer

Although its name did not even appear on the ballot, the California Supreme Court was perhaps the state’s biggest loser in Tuesday’s historic elections. The voters’ narrow approval of Proposition 8 effectively reverses the high Court’s controversial decision, earlier this year, extending the right to marry to same-sex couples.

The Court knew the risks. The statute it declared unconstitutional in In re Marriage Cases was itself the result of a state (statutory) ballot initiative in 2000. In overturning that assertion of popular will, the Court no doubt realized it was setting the stage for a further confrontation in which opponents of gay marriage would try to override the Court’s decision through the initiative process, this time amending the state Constitution.

Critics will say that Chief Justice Ron George’s Supreme Court is guilty of overreaching–that, by interceding in a political and cultural struggle, the Court has suffered a loss of prestige and institutional authority. But while it’s clear, in hindsight, that the George Court miscalculated the depth of opposition to gay marriage in the blue state of California, that does not mean the Court’s landmark decision in In re Marriage Cases was a mistake.

For one thing, California’s gay marriage battle is not over yet. Prop 8 is still subject to challenge under the US Constitution for, among other things, its selective cancellation of a previously granted substantive right. Although a decision founded in federal law would be subject to review in the US Supreme Court, there is no certainty the US high Court would elect to decide the case–or, if it did, that it would end up sustaining Prop 8.

Prop 8 is also subject to challenge under the California Constitution, even though the proposition is itself an amendment to the Constitution. This is so because, although the voters, through the initiative process, can add language to the Constitution, it is the responsibility of the California Supreme Court to interpret new constitutional language–and, where necessary, to reconcile it with other, equally valid yet potentially conflicting, constitutional directives.

In the latter category is the most important aspect of In re Marriage Cases: the George Court’s decision to analyze legal classifications based on sexual preference under the same rigorous standard of “strict scrutiny” usually reserved for classifications based on race, religion or ethnicity. This portion of the Court’s decision is not altered by Prop 8, and it will be front-and-center in any litigation against Prop 8 under state law. While the courts can’t void Prop 8 on this basis, applying strict scrutiny to Prop 8’s language is likely to yield a prohibition against gay marriage that is much weaker than Prop 8’s authors and supporters intended.

But even if the state Supreme Court takes neither of these paths, leaving Prop 8 intact (at least until a new electoral majority, in another ballot initiative, repeals it), the Court is to be applauded for attempting to resolve a pressing social question–whether to allow gays to marry–that the other branches of government had proved incapable of addressing.

In this area and others, it falls to the George Court to fill a widening governance gap created by a Legislature that is paralyzed by political divisions and a Governor who, despite Arnold Schwarzenegger’s forceful personality, has little real power compared to other chief executives. (Imagine a federal government in which the attorney general and other top executive branch officials are not appointed by, or answerable to, the President!)

When elected representatives don’t act, the people do—taking the law into their own hands through ballot initiatives, Prop 8 being only the most recent example. In this process of direct democracy, an assertive, even activist, Supreme Court is necessary to guard against excesses and to protect the rights of groups disfavored by the majority.

It was in this capacity that the George Court, to its credit, issued its decision in In re Marriage Cases, establishing a constitutionally-based right to same sex marriage. Although Prop 8 is clearly a setback for the Court, the damage done to the Court’s authority, while considerable, will not be permanent.
Peter Scheer, a lawyer and journalist, is CFAC’s executive director. Have a comment? Send it to