I find myself a bit surprised by the outrage over yesterday’s CA Supreme Court ruling in Strauss v. Horton (the Prop8 case). There were protests in DC (as well as in SF, LA, and NYC, to name a few) and the brunt of the arguments are that the CA Supreme Court is denying the right to gay marriage, that this ruling reinforces the notion that California is not as “progressive” as Iowa or other states, or that the CA Supreme Court is intolerant. What seems to get lost in the shuffle is that, quite simply, whether or not same-sex couples have a right to marry wasn’t the issue before the Court.

The California Supreme Court was not ruling on whether a legislative action denying same-sex couples the right to marry was constitutional or not; indeed, that issue had already been decided by the CA Supreme Court (In re Marriage Cases, 2008 (43 Cal.4th 757)) and it – very clearly – ruled that any legislative action that had that effect was violative of the California Constitution.

What the court ruled on yesterday was a procedural issue. To wit: whether the process of amending the state constitution was, as a matter of law, proper. It was about the scope of the right of the people to change or alter the state Constitution through the initiative process. It came down to whether or not Proposition 8 was a constitutional amendment or a revision. If the former, then only 51% of the population need support it and the state constitution is amended (as it has been over 500 times since 1879). If the latter, then a more tedious legislative process is required. In order to determine whether a revision has occurred, then two things need to be reviewed: “(1) the meaning and scope of the constitutional change at issue, and (2) the effect – both quantitative and qualitative – that the constitutional change will have on the basic governmental plan or framework embodied in the preexisting provisions of the California Constitution.” (Emphasis theirs.)

While the change in the definition of marriage is significant, it doesn’t necessarily absolutely preclude same-sex couples from the state-recognized property rights associated with civil unions or the like. The Court notes that it is a significant loss, but that that loss, per se, isn’t sufficient to constitute a revision of the constitution because the scope is relatively – according to the court – limited (to the extent that (1) rights are not absolutely deprived, and (2) there is precedence for amendments to limit the rights of individuals and (more importantly) groups) and, most importantly, the framework of the constitution has not been altered. As the court says, “[a]s a qualitative matter, the act of limiting access to the designation of marriage to opposite-sex couples does not have a substantial or, indeed, even a minimal effect on the governmental plan or framework of California that existed prior to the amendment.” (Emphasis, again, theirs.)

As a matter of legal history/precedent, this Court’s analysis makes sense. Contrary to the belief of all who scream “activist” (as if there were even a meaning to that word anymore) when a court decides a way they disagree with, judges are extremely reluctant to alter or shift the law in any direction. Here, consistent with that spirit, so long as avenues still exist – civil unions, government-recognized property rights to same-sex relationships, etc – then the Court will not find that a revision exists. If, on the other hand, this law were to completely preclude any other avenues of relief or deprive substantive rights from an entire classification of peoples, then that would (1) be a significant change in scope and (2) fundamentally alter the constitution (and conflict with any equal protection and inalienable right guarantees).

While I am a supporter of same-sex marriages, I do not think that the California Supreme Court acted incorrectly here. Had they ruled any other way, I would find their decisionmaking to be improper and outside of their power. The judges here are limited to establishing the issue before the court, interpreting the law, and applying it to the situation at hand. And they did it deliberately and appropriately. The sad truth is that 52% of the voting population voted yes for prop8. I think it’s unfair, I think it’s judgmental, I think it’s ridiculously prejudiced and close-minded.

But the Prop8 proponents simply did a better job of making their message heard and getting out the vote. Rather than blaming the California Supreme Court, the opponents of Prop8 need to convince 51% of the voters that same-sex couples deserve the same rights that opposite-sex couples receive through civil marriages.

That, and/or, change the friggin’ constitutional amendment process so that if 52% of the population are bigots, then they can’t deprive an entire group of rights.