“separate but equal” is back

The California Supreme Court upheld a ban on same-sex marriage today, ratifying a decision made by voters last year that runs counter to a growing trend of states allowing the practice.

The decision, however, preserves the 18,000 marriages performed between the court’s decision last May that same-sex marriage was lawful and the passage by voters in November of Proposition 8, which banned it. Supporters of the proposition argued that the marriages should no longer be recognized.

Today’s decision, written by Chief Justice Ronald M. George for a 6-to-1 majority, said that same-sex couples still have the right to civil unions… But the justices said that the voters had clearly expressed their will to limit the formality of marriage to heterosexual couples.
…
Justice Kennard suggested that the substantive rights of gays were the same after the proposition, and all that had changed was “the label of marriage.”

I’m wonder if Justice Kennard – which I have to restrain myself from spelling “canard” – would have felt similarly about arguments against women’s suffrage that said that wives would vote as their husbands directed them to, so there was no reason to grant them the franchise.

The justices in the majority were obviously trying to split the baby in this case, by upholding the “will of the voters” while preserving the marriages of those lucky enough to take their vows before Prop 8 passed.

Cowards. There is no logical way that you can both uphold the guarantee of equal protection enshrined in California’s state Constitution while at the same time granting the majority the power to curtail the civil rights of a minority in that same document.

As Earl Warren wrote in Loving v. Virginia:

The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival.

To allow a civil right to be subject to tyranny of the majority is patently unconstitutional, whether under California’s or the U.S. Constitution.