California’s Supreme Court upheld the state’s gay-marriage ban Tuesday but said the estimated 18,000 same-sex weddings that took place before the prohibition passed are still valid _ a ruling decried by gay-rights activists as a hollow victory
In a 6-1 decision written by Chief Justice Ron George, the court rejected arguments that the ban approved by the voters last fall was such a fundamental change in the California Constitution that it first needed the Legislature’s approval.
While gay rights advocates accused the court of failing to protect a minority group from the will of the majority, the justices said that the state’s governing framework gives voters almost unfettered ability to change the California Constitution.
The state Supreme Court ruled 4-3 last May that it was unconstitutional to deny gay couples the right to wed. For a while, that put California _ the nation’s most populous state _ back in its familiar position in the vanguard of social change; at the time, Massachusetts was the only other state to allow gay marriage.
In California, gay rights activists argued that the ban was improperly put to the voters and amounted to a revision _ which required legislative approval _ not an amendment. But the justices disagreed.
The court said that while the ban denies gay couples use of the term “marriage,” it does not fundamentally disturb their basic right to “establish an officially recognized and protected family relationship with the person of one’s choice and to raise children within the family.” California still allows gay couples to form domestic partnerships.
Prominent lawyers Theodore B. Olson and David Boies filed a lawsuit Friday in U.S. District Court on behalf of two gay men and two gay women, arguing that Proposition 8 violates the U.S. constitutional guarantee of equal protection and due process.
Olson said he hopes the case, which seeks a preliminary injunction against the measure until the case is resolved, will wind up before the U.S. Supreme Court. He is a former U.S. solicitor general who served in high-level Justice Department jobs in the Reagan and George W. Bush administrations.