Gay Marriage: Is California’s Supreme Court Shifting?

Posted on March 7, 2009
Filed Under Uncategorized

The prospects of same-sex marriage in California grew dimmer Thursday, when two Supreme Court justices who helped create the right for gays to marry in last year’s historic decision expressed deep reservations about attempts to strike down a statewide referendum passed last fall to ban the practice. “You would have us choose between these two rights: the inalienable right to marry and the right of the people to change their constitution,” said Justice Joyce L. Kennard, one of those two key judges. “You ask us to willy-nilly disregard the right of the people to change the constitution of the state of California. But all political power is inherent in the people of California.” (See the top 10 ballot measures.)

The justices created the right to marry same-sex partners in California last year in a sweeping 4-3 decision. But in November, Californians went to the polls to amend the constitution to prohibit gay marriage. The amendment passed with 52% of the vote, but protests spread throughout the state in the days immediately after the vote. Several groups sued, arguing that stripping away the right to marriage amounted to such a serious change to the constitution that it should require more than a simple majority vote. (Read “A Brief History of Gay Marriage.”)

Chief Justice Ronald George, the Republican justice who authored last year’s opinion, appeared to agree that the barrier to constitutional amendments is far too low in California, noting that the Golden State has seen fit to amend its constitution no fewer than 500 times since 1911, while the U.S. Constitution has survived more than 200 years with just 27 amendments. But like Kennard, who had also voted with the majority to establish the right to gay marriage last year, George seemed to suggest Thursday that until the people of California raise the barrier for amendments, the court has little power to overturn their decisions.

See Gay Marriage: Is California’s Supreme Court Shifting? @ Time