The California Supreme Court Rules To Uphold Prop 8, Uphold Ban On Same-Sex Marriage


The California Supreme Court has just issued its ruling on the case against California Prop 8 (which was passed in the November election here in California that amended the State constitution to ban same-sex marriage) and decided that Prop 8 is valid, same-sex marriage will remain illegal in the State of California. The only glimmer of good news from today’s ruling is that the court also ruled that the approximately 18,000 same-sex couples who were wed last year when the practice was legal will still be legally married:

The California Supreme Court today upheld Proposition 8’s ban on same-sex marriage but also ruled that gay couples who wed before the election will continue to be married under state law. The decision virtually ensures another fight at the ballot box over marriage rights for gays. Gay rights activists say they may ask voters to repeal the marriage ban as early as next year, and opponents have pledged to fight any such effort. Proposition 8 passed with 52% of the vote. Although the court split 6-1 on the constitutionality of Proposition 8, the justices were unanimous in deciding to keep intact the marriages of as many as 18,000 gay couples who exchanged vows before the election. The marriages began last June, after a 4-3 state high court ruling striking down the marriage ban last May. In an opinion written by Chief Justice Ronald M. George, the state high court ruled today that the November initiative was not an illegal constitutional revision, as gay rights lawyers contended, nor unconstitutional because it took away an inalienable right, as Atty. Gen. Jerry Brown argued. Only Justice Carlos R. Moreno, the court’s sole Democrat, wanted Proposition 8 struck down as an illegal constitutional revision. Justice Joyce L. Kennard, who voted with the majority last year to give gays marriage rights, joined George and the court’s four other justices in voting to uphold Proposition 8. The case for overturning the initiative was widely viewed as a long shot. Gay rights lawyers had no solid legal precedent on their side, and some of the court’s earlier holdings on constitutional revisions mildly undercut their arguments. But gay marriage advocates captured a wide array of support in the case, with civil rights groups, legal scholars and even some churches urging the court to overturn the measure. Supporters of the measure included many churches and religious organizations. Before last fall, California was one of only two states — the other was Massachusetts — to permit same-sex marriage. Iowa, Connecticut, Vermont and Maine have since legalized it, and lawmakers in New York, New Jersey and New Hampshire are considering bills of their own. California’s historic 2008 ruling, written by George, repeatedly invoked the words “respect and dignity” and framed the marriage question as one that deeply affected not just couples but also their children. California has more than 100,000 households headed by gay couples, about a quarter with children, according to 2000 census data. As soon as the ruling was final, thousands of gay couples showed up at city halls around the state to marry, and many flew in from elsewhere for California weddings. While the wedding business was brisk, opponents mounted a heated campaign with the help of churches and conservatives to overturn the court’s action. Even with the court upholding Proposition 8, a key portion of the court’s May 15, 2008, decision remains intact. Sexual orientation will continue to receive the strongest constitutional protection possible when California courts consider cases of alleged discrimination. The California Supreme Court is the only state high court in the nation to have elevated sexual orientation to the status of race and gender in weighing discrimination claims.

While very upsetting, this news is unsurprising. It was widely expected that the court would uphold Prop 8 and still validate the same-sex marriages that took place here in California when the practice was legal. The next step for same-sex marriage supporters is to put the measure back on the ballot (as early as next year) to amend the State constitution again. It is very clear that California is deeply divided on this issue … the clash of conservatives and liberals is very marked in this State. Altho I was pretty sure I knew what the ruling would be, I’m still very saddened by the outcome. It does hearten me that there are beacons of hope for true freedom in this country shining from the great states of Massachusetts, Connecticut, Iowa, Vermont and Maine. The fight for marriage equality still has a long way to go … but we will get there one day. Of that, I have no doubt.


  • Katie

    I was really optimistic for this one.. I guess I can be glad I live in Canada.

  • I’m not from or in California, but this new sucks. I am from Texas, and can only imagine what the fight will be like here once it comes into consideration. There are so many conservatives, but I too have no doubt that one day all states will treat everyone equally!

  • shannon

    Personally, I find the fact that the 18,000 same-sex marriages performed before Prop 8 passed are still valid to be even more discriminatory than Prop 8 itself. I’m a believer in all or nothing in this case. Either legally recognize same-sex marriages regardless of when they were performed or don’t legally recognize them at all.

    California residents: start collecting signatures now to get a Constitutional amendment on your ballot that overturns Prop 8 entirely and truly makes all monogamous marriages in the state equal.

  • VV

    Very disappointing, but not hugely surprising. There will be equality one day, but it’ll be a long slog.

  • Ally

    This is extremely unfortunate. From a legal stand point, I believe that the CA Supreme Court did what they had to. Their job is to uphold the constitution and since the amendment is now part of that constitution, they upheld it. I think the best thing to happen right now is for a couple that legally marries in one state (say Iowa), moves somewhere that will not let them marry but will recognize the union (I believe DC does this) and then moves to a state where they would not be allowed to get married AND will not recognize their union (like say VA). Then they could challenge the state (VA) based on equal protection, reciprocity, and I’m sure other things that I do not have the time to research. Since most states will recognize civil unions from other states even if they do not allow it in their state, I think it would work. Like a Dread Scott ( for the modern age, but hopefully more successful.

    • @Ally — you are absolutely right, your legal explanation is right on. I’ve always contended that this matter will be taken up on the national level, which is why Supreme Court nominees are VERY important.

  • brenda


  • Cam

    Even though the court has upheld Proposition 8, a key portion of the court’s May 15, 2008, decision remains intact. Sexual orientation will continue to receive the strongest constitutional protection possible when California courts consider cases of alleged discrimination. The California Supreme Court is the only state high court in the nation to have elevated sexual orientation to the status of race and gender in weighing discrimination claims.

  • Mr. Gyllenhaal

    SO SAD

  • Madsme

    Boo. Poor show, California. Get out of the bedroom already.

  • Sweet_Lady

    very disappointing to hear.

  • yea

    I couldn’t care less. OMFG so not p.c. but I don’t really care-

  • Amanda in San Diego

    I know that we’ll see the day that every Californian has equal right to marry in my lifetime, I have no doubt. That’s clearly not the case right now but this goes to show that we have a long way to go in our fight for true equality for all. Just as women had to fight for their vote and African-Americans have fought for freedom & equality, our Gay & Lesbians citizens are also forced to fight for their rights. We as Americans have always fought for our freedom and this is no different. Straight against H8!

  • Todd

    Too sad for words. I also am not surprised at the outcome but was hoping for a miracle.
    Me and my b/f have been together for over 14 years, he is even an ordained minister and has already led a wedding. Yet we 2 cannot get married.
    Atleast here in WA state as of June 26th we will have all the rights of a married couple under the new domestic partnership for same sex couples. Of course, the religious right here is now starting a ref 71 to overturn that, even though domestic partnership has absolutely nothing to do with the church.
    All I want is to spend the rest of my life with the one I love. Let them keep saying we’re “illegal”, it’s not gonna break us up. It makes us stronger in our love. No one, especially the government or churches will ever take that from me. EVER!!!

  • Ally

    Trent — I hope three years of law school helped that one. Ha! I sincerly hope that there is someone out there thinking the same thing that has enough experience to win.

  • Derek

    This is really terrible news, I hope everyone will go out to a rally tonight, they are in 93 different cities.

  • Jstar

    My heart aches…

  • daniela

    Even though I am not an American and not gay, it’s still upsetting. I was crossing my fingers that those stuffy old men and dried up prunes would actually open their minds. It’s a small consolation that they won’t annul the marriages made during the six months but at least it’s something?
    I really do hope they’ll put out another referendum next year. Come on Cali, what the ??

  • Meghan

    How sad is it that same sex couples can get married in Iowa, but not in California??? That is just ridiculous. Who would have thought Iowa more progressive than California?

  • Aaron

    We all have to remember how this went down. A large percent morons used millions of dollars to spread lies, fear and misinformation to the people they believed would listen to them and vote accordingly. In this case, it was the church which is primarily African Americans who then believed that their pastors would be hauled off to jail if they failed to perform same-sex weddings. This was just one of many ads that ran when Prop 8 was on the ballot. It was a blatant lie and totally ridiculous. Due to the fact that Obama was running for president, there was already a higher than average turn out rate of African American voters…So where do we go from here? It’s about educating the people who vote against us. In America there is a separation of church and state. Likewise, there should be a separation between state and what two consenting adults do in the privacy of their home.

  • It’s just such a “come here / go away” duality to uphold the ban (boo) yet continue to recognize the legality of marriages performed last year (yay).

    Living in a place where gay marriage has been legal for quite some time, it’s plain to see that ONE DAY the right thing will be done in California. When it is, it won’t take long for the citizens of that state to grow with the understanding that this simply another aspect of life in a contemporary society – like audio crosswalks for blind pedestrians, awesome new Star Trek movies, and figuring out what you can do in your own home to combat climate change. It’s just part of life and that’s that.

  • Janelle

    @Ally – I’m so glad someone else was thinking what I was thinking.
    I’m so ashamed of my state, though.

  • Bleeding Ears

    @yaya… I’m just curious, do you think gay people choose to be gay or do you think they are born gay?

  • I tried not to get my hopes up, but I am so devastated. Today, the coolness of that supercoolest of states has dimmed.
    Everyone in this country knows – even those that are devoting everything they have to suppressing the marriage rights of gays in this country – we all know that the tide will keep moving toward freedom for all. This is an inevitability, and only time will tell the truth about the tyranny that tied us in the past. And by saying “us,” I mean all of us as a part of the great human family. If I, a married, heterosexual conservative woman can say this – hardly someone on the edge of a terrifying lunatic fringe hell-bent on destroying marriage forever – can’t we all?

    Dr. King said something that resonates with the fight for civil rights for all humankind. Today that fight is for marriage rights for gays. Tomorrow, it might be for something that you hold profoundly dear:

    When our days become dreary with low-hovering clouds of despair, and when our nights become darker than a thousand midnights, let us remember that there is a creative force in this universe, working to pull down the gigantic mountains of evil, a power that is able to make a way out of no way and transform dark yesterdays into bright tomorrows. Let us realize the arc of the moral universe is long but it bends toward justice.
    Rev. Martin Luther King, Jr.

  • Anony

    I am glad that the CA supreme court seems to have issued an impartial ruling in this case, but in response to “bleeding ears” I have to say simply: we don’t know people are gay. I can’t imagine WHY someone would choose to be gay if they knew that a large proportion of the population would spew hatred at them. It just doesn’t make sense. I have my own theories of nature AND nurture, but no time for that here…

    However, that being said, I am glad that no one (at least in the threads I can see) is bashing any religion. Nothing will be accomplished by either side if subgroups of the “for” and “against” are being malicious and hateful towards each other. This calls for a civil dialogue and understanding of both sides of this highly charged issue, not for knee-jerk reactions and maliciousness.

    I have about a dozen gay friends, and I have appreciated their willingness to listen to me, and they have expressed the same for me being willing to listen to their side, and while we don’t agree, we can disagree without being disagreeable.

  • Bleeding Ears

    In response to me? I wasn’t aware I asked you something… haha

  • Jazz

    Straight people make more of a butchery of marriage than gay people ever will.