The Court's website is getting hammered, so I have hosted the opinion here. Looks to be what was widely expected. More analysis later, perhaps.
Edit: Justice Moreno is the only dissenter, it appears. I had the pleasure of practicing before him when he was a federal judge.
Edit2: Moreno's dissent, at its core, is that using the initiative process to strip a group of a previously recognized right should be classified as a revision rather than an amendment.
For reasons elaborated below, I conclude that requiring discrimination against a minority group on the basis of a suspect classification strikes at the core of the promise of equality that underlies our California Constitution and thus “represents such a drastic and far-reaching change in the nature and operation of our governmental structure that it must be considered a ‘revision’ of the state Constitution rather than a mere ‘amendment’ thereof.” (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 221 (Amador Valley).) The rule the majority crafts today not only allows same-sex couples to be stripped of the right to marry that this court recognized in the Marriage Cases, it places at risk the state constitutional rights of all disfavored minorities. It weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority. I therefore dissent.
That's rather like a riff on Romer v. Evans, as applied to amendment classification. It was my understanding that the Plaintiffs in this case did not pursue a Romer v. Evans argument, relying exclusively on California constitutional law.
Edit3: The court's explanation of why existing same-sex marriages remain valid is, to my eyes, persuasive. It's mostly application of existing law on what language is sufficient to trigger retroactivity — including cases in which the language, like the language in Proposition 8, is a present-tense statement of the law. One might quarrel that this is a silly result, but the court presents it rather convincingly is the result mandated by current law.
Edit4: It's 185 freaking pages long, and not organized particularly well. Headings, people! Bullet points! Signposts! But anyway, I've already seen some commentary suggesting that the court pulled a fast one — that it incorporated, as a basis for its decision, the notion that in California gays have rights that are akin to marriage in all but name, and that this similarity is what saves the alteration to the constitution from being a problem. Thus, some commentators suggest, the court effectively constitutionalized (I know, not a word) civil unions. I haven't had time to read it with sufficient care to comment, but it seems to me this is a problematical take on several levels — not the least of which is that civil unions lack many rights enjoyed by marriages.
Last 5 posts by Ken White
- Hate Speech Debate on More Perfect Live - September 5th, 2017
- Popehat Goes To The Opera: Un ballo in maschera - August 19th, 2017
- Department of Justice Uses Search Warrant To Get Data On Visitors to Anti-Trump Site - August 14th, 2017
- America At The End of All Hypotheticals - August 14th, 2017
- Lawsplainer: Why John Oliver Is Anti-Diversity Now - August 11th, 2017