To be honest, I wasn’t expecting it, but it does seem to be the correct judicial response. If the Supreme Court had over-ruled a referendum of the whole electorate, that would have been majorly controversial.
It appears that they have ruled that all the existing same-sex marriages are still valid, but no new ones are to be permitted. Not sure how that’ll work, but there you have it.
It will be very interesting to see how those who are anti-Prop 8 will react. Remember, when the Supreme Court initially made its May 15th 2008 decision, there was no wide-spread rioting or damage caused by traditionalists. However, the same could not be said when Prop 8 passed. Are we going to watch liberals being extremely illiberal again?
Update – Tim K over at Box Turtle Bulletin has this to say:
The Times reminds us
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.
Taken literally, this would then mean that an amendment to the California Constitution to exclude citizens from certain rights based solely on their race would also be constitutional on a state level.
I think Tim K misses the point. Equality is based on the basis of different people being entitled to perform the exact same activity as other people. So in the case of marriage, the current right is for someone to be able to marry someone of the opposite sex. The sexual orientation of the person involved is irrelevant, the issue is simply about being able to do the same activity.
At the moment, (and as the law now stands), *no-one* is entitled to marry whoever they want. There are certain guidelines (opposite sex, neither currently married etc) which apply to all. If the people of California voted to not allow black people to marry, but to allow white people to, then that would be discriminatory, because the exact same activity would be disallowed to one group of people on the basis of their race. But not allowing someone to marry someone of the same sex is *not* discriminatory if no-one else is allowed to do so.
Now, if it could be demonstrated that sexual orientation was a natural biological variance in the same way that race or sex was, then I think a legal case could begun to be built to move towards same-sex marriage. But at the moment we’re actually at the position where if someone says “I’m gay” there is simply no way they can prove such a statement scientifically (as you can with race or sex). That’s an issue for the pro-LGBT rights lobby and it needs to be addressed before moving forward with issues of equality.