Did the California Supreme Court Help or Hurt Gay Couples?


It seems safe to say that the gay marriage movement is worse off now than it would have been if California's Supreme Court had not ruled last spring that the state constitution requires equal treatment of same-sex couples. In response to that decision, voters have, by a 52-to-48-percent margin, enshrined unequal treatment in the constitution instead. This is just the sort of outcome that critics of the decision who oppose discrimination in this area (including reason online contributor Steve Chapman) were worried about.

The Los Angeles Times says the passage of Proposition 8 "throw[s] into doubt the unions of an estimated 18,000 same-sex couples who wed during the last 4 1/2 months." But according to Berkeley law professor Joan Hollinger, quoted last summer in The Advocate, "Constitutional scholars agree that the amendment cannot be effective retroactively," since that would violate the U.S. Constitution's prohibition of state laws "impairing the obligation of contracts."

In May I criticized the constitutional reasoning underlying the California Supreme Court's gay marriage ruling. Last month Terry Michael defended the legalization of gay marriage by the courts.