Court Upholds Prop 8
Same Sex Marriage Ban upheld by California Supreme Court; 18,000 existing same sex marriages are safe.
The Court can observe bad law, but not always change it.

What it means
Today the California Supreme Court upheld the Constitutionality of the amendment banning same sex marriage, popularly known as "proposition 8." The case is known as "Strauss v. Horton" and in it the appellate made the claim that the amendment violated basic rights.

The proposition was narrowly passed last year, largely because proponents claimed it didn’t regulate "civil unions", allowing some moderate voters to support the measure.

Opponents pointed out that the proposition would constitutionally created a special class of persons, opposite sex couples, to receive legal benefits, and specifically restricted another class of person, same sex couples, to be denied those benefits. Typically, in the United States, minorities are protected from discrimination by the majority under the United States Constitution, which protects individual liberties.

In a stark example of the bizarre nature of legal fictions, the court upheld the 18,000 same sex marriages that had taken place since In re Marriage Cases (2008) 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384]. In that decision the California Supreme Court recognized that denying same sex couples the right to marry was contrary to "Liberty" in the California Constitution.

Proposition 8 essentially changed the Constitution to deny that liberty, but occurred too late to deny those already legally married in the mean time. In short, those Californians married between in re: Marriage Cases and the passing of Prop 8 enjoy the full rights of being human, proving such a thing is possible. It was simply taken away by the voters. The Court offered the opinion that there could be limits on changes made to the Constitution by the voters, but none existed now.

In short: the Court hasn’t changed its mind, it still considers the ban on same sex marriage to be discrimination, but the law doesn’t exist to overturn a proposition approved by the people. Chief Justice Ronald M. George wrote for the majority: "In a sense, petitioners' and the attorney general's complaint is that it is just too easy to amend the California constitution through the initiative process. But it is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it,"

George said that Prop 8 "carves out a narrow and limited exception" to the liberty those lucky hetero couples have. His meaning: all Californians have equal liberty, give or take a little.

The most recent action of the court was applauded by "religious" groups like the Church of… Latter-day Saints, who said, from Salt Lake City, Utah:

"The Church of Jesus Christ of Latter-day Saints recognizes the deeply held feelings on both sides, but strongly affirms its belief that marriage should be between a man and a woman." issued a statement: "We are very gratified that the California Supreme Court has upheld Proposition 8. This is the culmination of years of hard work to preserve marriage in California. Hundreds of thousands of volunteers worked diligently to uphold the institution of marriage.

On the other hand, groups that support individual liberty decried the decision. Gavin Newsom, Mayor of San Francisco said, "It's cold comfort to many that history is moving in the right direction, with five states already on their way to marriage equality. But it's our job to make sure history moves faster towards equality here in California."

The Catholic Church is thrilled; Move-On, the ACLU and Democracy for America are moving against the ban.

How many gay people live in Sierra County?

Estimates vary widely, from 66 to 300. That’s a pretty wide spread, and there’s a good reason for that. "Homosexuality" is a social construct, meaning it is defined by society.

There is broad variation across existing and previous societies on the subject of gender. Many societies don’t consider sex between same sexes to be sex, and so there aren’t clear definitions of homosexuality. In some societies, sex between boys and men is considered normal and not homosexual as long as no emotions are involved, and sex between women is blasphemy.

Sociologists and anthropologists can classify societies and predict the gender rules simply by knowing the rules for property inheritance, ratio of marriageable women to property owning men, and rules of endogamy/exogamy (what family or clan can/must not intermarry).

A very few societies even have the very rational approach which holds that is it people, and not genitalia, who fall in love and bond, and that in a person’s life they might love both men and women. On the other hand, some find that suggestion itself disquieting.

One thing is constant across societies: the more strict the religion, the more strict the gender rules. That continues to be true in America today. The more religious a person is, the more restrictive they tend to be in their gender rules. The more tolerant a person, the more likely they are to allow others the rights they enjoy.

Still, in a nation that believes that a person has the God given right to self-determination, it seems odd that the antics of consenting adults should be restrained. It is likely that most voters for Proposition 8 didn’t understand they were making a fundamental, and very un-American change to the Constitution. Some supporters of the "Marriage for Penis and Vagina Only" law claim they are not against "domestic partnership" for same sex couples and that "civil unions" provide the same benefits, but reserve marriage for inny-outy only, not inny-inny or outy-outy. However, it turns out not to be the case that marriage and domestic partnerships are the same. Marriage continues to provide legal and social safeguards that civil unions do not.

What about Sierra County’s gay and lesbian folk?

Sierra County isn’t known as a bastion of gay liberation, and even under our culture’s rather strict definition of "gay" or "lesbian" it is impossible to know how many of us are gay. Still, sure as God made the Great Sierra Valley, there are gay and lesbian couples among our neighbors, good and decent cousins who contribute to our community.

Sierra County Clerk Heather Foster told the Prospect that there were 5 same sex marriage licenses issued in the period between In re: Marriage Cases and Prop 8 of about 24 total licenses for that period. Some of those marriages were performed in the Clerk’s office.

No one knows how many couples in Sierra County would like to settle down, care for each other, be part of the normal social world. Currently, they can form a civil union, they can adopt each other’s children, but they can’t marry.


The real effect of the Court’s decision is to return the issue to the people. There has been a trend of states banning same sex marriages and courts overturning those bans on the basis of equal protection. There will almost certainly be more propositions in California, the next is likely to restore full citizenship to couples in same sex marriages.

Data from countries that allow same sex marriage report that, after an initial period of "catch up" the rate is about 3%, or about three couples in a hundred are same sex.

An interactive map is HERE
Interesting perspective is HERE
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