SAN FRANCISCO – The California Supreme Court upheld a voter-approved ban on same-sex marriage Tuesday, but it also decided that the estimated 18,000 gay couples who tied the knot before the law took effect will stay wed.
Demonstrators outside the court yelled "shame on you!" Gay rights activists immediately promised to resume their fight, saying they would go back to voters as early as next year in a bid to repeal the ban.
The 6-1 decision written by Chief Justice Ron George rejected an argument by gay rights activists that the ban revised the California Constitution's equal protection clause to such a dramatic degree that it first needed the Legislature's approval.
The court said the Californians have a right, through the ballot box, to change their constitution.
"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," the ruling said.
The justices said the 136-page majority ruling does not speak to whether they agree with the voter-approved Proposition 8 or "believe it should be a part of the California Constitution."
They said they were "limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values."
The announcement of the decision set off an outcry among a sea of demonstrators who had gathered in front of the San Francisco courthouse awaiting the ruling. Holding signs and many waving rainbow flags, they yelled "shame on you." Many people also held hands in a chain around an intersection in an act of protest.
Same-sex marriage is legal in Iowa, Maine, Vermont, Massachusetts and Connecticut.
The court said it is well-established legal principle that an amendment is not retroactive unless it is clear that the voters intended it to apply retroactively, and there was no such clear indication in Proposition 8.
That provided some relief for the 18,000 gay couples who married in the brief time same-sex marriage was legal last year but that wasn't enough to dull the anger over the ruling that banned gay marriage.
"It's not about whether we get to stay married. Our fight is far from over," said Jeannie Rizzo, 62, who was one of the lead plaintiffs along with her wife, Polly Cooper. "I have about 20 years left on this earth, and I'm going to continue to fight for equality every day."
Also in the crowd gathered at City Hall, near the courthouse, were Sharon Papo, 30, and Amber Weiss, 32, who were married on the first day gay marriage was legal last year, June 17.
"We're relieved our marriage was not invalidated, but this is a hollow victory because there are so many that are not allowed to marry those they love," Weiss said.
"I feel very uncomfortable being in a special class of citizens," Papo said.
A small group of Proposition 8 supporters also had gathered outside the court to hear the ruling.
"A lot of people just assume we're religious nuts. We're not. But we are Christians and we believe in the Bible," said George Popko, 22, a student at American River College in Sacramento, where the student government officially endorsed Proposition 8.
The state Supreme Court had ruled last May that it was unconstitutional to deny gay couples the right to wed. Many same-sex couples had rushed to get married before the November vote on Proposition 8, fearing it could be passed. When it was, gay rights activists went back to the court arguing that the ban was improperly put to voters and amounted to a revision — which required legislative approval — not an amendment.
That was the issue justices decided Tuesday.
"After comparing this initiative measure to the many other constitutional changes that have been reviewed and evaluated in numerous prior decisions of this court, we conclude Proposition 8 constitutes a constitutional amendment rather than a constitutional revision," the ruling said.
Justice Carlos Moreno wrote the dissenting opinion disagreeing that the proposition did not change the constitution's equal protection clause. He said the law denying same-sex couples the right to wed "strikes at the core of the promise of equality that underlies our California Constitution." He said it represents a "drastic and far-reaching change."
"Promising equal treatment to some is fundamentally different from promising equal treatment for all," said Moreno, who had been mentioned as a possible contender for the U.S. Supreme Court. "Promising treatment that is almost equal is fundamentally different from ensuring truly equal treatment."