Proposition 8 Ruling Sets up California War

Ted Soqui

Robin Tyler and Diane Olson, L.A. County’s first same-sex-marriage partners,just before hearing news that their marriage will be upheld by the court

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More About

• Carlos Moreno
• Proposition 8
• Jerry Brown
• Same-Sex Marriage
• LGBT Issues

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The lopsided 6-1 ruling onMay 26 by the California Supreme Court to uphold Proposition 8 and ban gay marriage in California was rich with irony, even if it was missed by many commentators, protesters and celebrators: The sole dissent was from Justice Carlos Moreno, who said majority voters should not be allowed to deprive a minority of fundamental rights. The court at the same time agreed, unanimously, that 18,000 marriages conducted before voters spoke last November 4 cannot be undone.

Proponents of gay marriage — who hope to take their cause back to California voters next year — now must win over the tens of thousands of Latino and black voters whose socially cautious views toward family and marriage put Prop. 8 over the top in November, and whose attitudes caught the state’s politically isolated top gay-rights advocates by surprise.

Assemblyman John Perez, who represents the heavily Latino Eastside of Los Angeles and is a relatively rare openly gay Latino politician, called the ruling a setback, but told L.A. Weekly, “Every movement for social change, every movement to end discrimination, hits stumbling blocks. Today was another stumbling block but it was not a permanent impediment, it’s a temporary impediment.” He was also tremendously “heartened” by Moreno’s dissenting opinion, saying it lays the foundation for a different future.

This week’s ruling had its roots in a decision by San Francisco Mayor Gavin Newsom to allow gay marriages in his city. He was bolstered when the California Supreme Court ruled in a 4-3 decision about a year ago that a state law defining marriage as between a man and a woman violated fundamental rights. After voters responded by approving Prop. 8, Attorney General Jerry Brown, who will face fellow Democrat Newsom in next year’s primary fight for California governor, announced he could not support voters — and joined as a plaintiff against Prop. 8.

This week, California gubernatorial hopefuls continued to joust over gay marriage. State Insurance Commissioner Steve Poizner, a Republican, slammed Brown’s position, saying, “If the Court had overturned Proposition 8, it would have had set a terrible legal precedent, divided Californians even further, undermined support for the judiciary and state government itself.” Political observers believe Brown will fight hard to assure that the lesser-known Newsom doesn’t own the pro-gay marriage issue.

Amidst those political tussles, legal scholars this week noted that the apparent flip-flop by three of the justices, from their 4-3 ruling just one year ago, is in fact a classic example of backing the concept of “popular sovereignty.” According to Eugene Volokh, the Gary T. Schwartz Professor of Law at UCLA and a widely read law blogger at The Volokh Conspiracy, the six justices who upheld Proposition 8 based it on “their judgment that the people’s views prevail over the Justices’. And they rebutted, in my view persuasively, but in any event clearly and informatively, the arguments to the contrary.”

And in fact, Chief Justice Ronald George explained that voters had the right, despite the court’s own view a year earlier, to approve an amendment to the California state Constitution that explicitly defines marriage as solely for couples made up of a man and a woman.

Justice Carlos Moreno alone argued that the majority should not be allowed to deprive a minority of fundamental rights by passing an initiative. Moreno is an interesting case himself, a Stanford-educated former Los Angeles deputy city attorney who, throughout his career, has been elevated from judgeship to judgeship by both Republican and Democratic elected leaders.

John Chase, urban designer for the City of West Hollywood, who coincidentally designed Justice Moreno’s home, says he wasn’t surprised at Moreno’s position. “He’s always been the kind of person that you’d take problems or your troubles to because he’s wise and fair.” Chase, one of the 18,000 whose marriages will stand, says Moreno “shows the same compassion and kindness and good judgment that I always experienced in all my dealings with him.”

Volokh says that the arguments made by the justices, including Moreno’s dissent, have created “a great case study of the recurring debates about popular sovereignty, constitutionalism, the role of courts, and more broadly the mixed majoritarian and antimajoritarian nature of American constitutions.”

Southern California architect Lewin Wertheimer, whose marriage to Henry Murray after 20 years together is now recognized as legal, tells the Weekly that, “I honestly think that their hands were probably tied, that really in the letter of the California Constitution, they probably felt that they had to vote that way. But at a certain point you sometimes have to stand up for something that’s bigger than what you’re put into position to uphold.”

Although much media coverage has focused on the fact that Prop. 8 passed with 52 percent voter support thanks to a $40 million campaign underwritten by Christian conservative groups and Mormons, the Weekly has previously reported that the poorly handled $45 million campaign by gay leaders who controlled the anti-Prop. 8 effort played the greater role in the passage of Prop. 8.