Striking at the equal protection clause

Before the Calif. ruling was made public a blogger named Law Dork reminds us this is not a question of gay marriage (which this same court affirmed a year ago). It is not a question of whether the national constitution equal protection clause applies in this case (the Calif. Supremes were not asked that question). It is a question of how the state constitution can be amended. He believes that the vote to ban marriage and the demonstrations that followed were an awakening that gave us gay marriage in Vermont, Maine, New Hampshire (soon), and DC.

On to our main feature today.

The Calif. Supremes have decided the state gay marriage ban is upheld and that the existing 18,000 gay marriages remain valid. From the ruling:

* The ban is a constitutional amendment (and thus was properly brought before voters), rather than a constitutional revision (which would have required a much more stringent process).

* It does not violate separation of powers, voters can overrule the judiciary.

* It is not invalid under the "inalienable rights" theory. This seems odd to me because the court ruled a year ago that marriage was a right.

* It is not retroactive.

* It can be overturned at the ballot box.

Other points from a scan of the ruling:

* While it is significant, all this ruling does is remove the word "marriage" from a description of gay relationships (Calif. does have domestic partnerships). There is no substantive difference (which seems opposite of what they said a year ago).

* Such a change has but a miniscule effect on the governmental framework for the state.

* There is nothing in the constitution that says a majority cannot take away the rights of a minority, even in an amendment to that same constitution.

The vote was 6-1.

The overall ruling contains a couple separate opinions.

One of them disputes the amendment/revision conclusion, saying the justification for that ruling (which includes a list of previous cases on a variety of issues) does not include a precedent in which an amendment takes away a right and does nothing else. However, since the scope of this change is so small and equal protection is satisfied -- gays have all the rights of marriage through DPs but not the name -- the ban shall stand.

The one dissent:
This very court said a year ago that equal protection demands gays must be able to use the word marriage. Therefore, an amendment that strikes at the equal protection clause must be considered a revision, not an amendment. Allowing this amendment to stand puts all disfavored minorities at risk.

An organization called Courage Campaign will immediately start airing a commercial decrying the ruling and urging support for a 2010 repeal.