Brewer v. Premier Golf Properties is Final
On Sonia Sotomayor and Her Record in Employment-Related Matters

Supreme Court Upholds Prop 8

This is off-topic, but it's such big news in general and among employment litigators, we thought we'd post it - especially for those who are having trouble getting to the opinions page. In Strauss v. Horton, and related cases, the California Supreme Court has upheld Proposition 8, but has ruled that gay marriages that were entered into on or before election day shall remain valid. Here's the heart of the holding, which can be found on pages 12 and 13 of the majority opinion:

Accordingly, we conclude that each of the state constitutional challenges to Proposition 8 advanced by petitioners and the Attorney General lacks merit. Having been approved by a majority of the voters at the November 4, 2008 election, the initiative measure lawfully amends the California Constitution to include the new provision as article I, section 7.5.


Finally, we consider whether Proposition 8 affects the validity of the marriages of same-sex couples that were performed prior to the adoption of Proposition 8. Applying well-established legal principles pertinent to the question whether a constitutional provision should be interpreted to apply prospectively or retroactively, we conclude that the new section cannot properly be interpreted to apply retroactively. Accordingly, the marriages of same-sex couples performed prior to the effective date of Proposition 8 remain valid and must continue to be recognized in this state.

The majority opinion, 5-2 with Justices Kennard and George joining the three dissenters (Baxter, Chin and Corrigan) from In re Marriage Cases, is 136 pages long. Justice Kennard wrote a concurring opinion that added some analysis that was not included in the majority opinion. Justice Werdegar (who did not sign the majority opinion) wrote a concurring opinion in which she agreed that Prop 8 was valid, and that existing marriages are not to be retroactively voided, but disagreed with the most of the majority's analysis. Justice Moreno wrote a concurring and dissenting opinion in which he agreed with the part of the decision that validated the existing marriages, but disagreed that Prop 8 was a valid revision to the constitution. So the vote was 5-2 on the majority opinion, but on the issues, it was 7-0 on keeping existing gay marriages in place, and 6-1 in favor of upholding Prop 8 as a valid amendment to the Constitution.

The majority went to great lengths to say how they were forced to come to this conclusion even though they may disagree with the people's decision.

In addressing the issues now presented in the third chapter of this narrative, it is important at the outset to emphasize a number of significant points. First, as explained in the Marriage Cases, supra, 43 Cal.4th at page 780, our task in the present proceeding is not to determine whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution. Regardless of our views as individuals on this question of policy, we recognize as judges and as a court our responsibility to confine our consideration to a determination of the constitutional validity and legal effect of the measure in question. It bears emphasis in this regard that our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values.

Second, it also is necessary to understand that the legal issues before us in this case are entirely distinct from those that were presented in either Lockyer or the Marriage Cases. Unlike the issues that were before us in those cases, the issues facing us here do not concern a public official’s authority (or lack of authority) to refuse to comply with his or her ministerial duty to enforce a statute on the basis of the official’s personal view that the statute is unconstitutional, or the validity (or invalidity) of a statutory provision limiting marriage to a union between a man and a woman under state constitutional provisions that do not expressly permit or prescribe such a limitation. Instead, the principal issue before us concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process so as to incorporate such a limitation as an explicit section of the state Constitution.

In considering this question, it is essential to keep in mind that the provisions of the California Constitution governing the procedures by which that Constitution may be amended are very different from the more familiar provisions of the United States Constitution relating to the means by which the federal Constitution may be amended. ... 

To get to the opinions page, go here:

To download the opinion in MS-Word, right click here:

To download the opinion in PDF, right click here:

The Court's press release on the opinion can be read here:


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