California high court perpetuated license problem in Prop. 8 decision

Opponents of marriage as the union of a man and a woman are outraged at the California Supreme Court's unsurprising ruling that the voters have the right to amend the state constitution. In America, we respect the results of fair elections, and the passage of Proposition 8 was fair. If anything, the odds were tilted against Proposition 8 by the court's refusal to stay its decision redefining marriage and the attorney general's biased ballot title.

Indeed, it would have been beyond the pale for the court to have struck down Proposition 8, as Justice Moreno wanted to do. The California Constitution itself has embodied the concept of marriage as the union of a man and a woman in its provision about the separate property of husbands and wives from the beginning of statehood. Instead of revising the constitution, Proposition 8 merely restored the historical meaning of marriage in California.

So, no, there was nothing radical about upholding Proposition 8. The radical part came in the court's decision to say that the marriage licenses issued to members of the same sex are valid, despite the plain language of the amendment.

But the thorny issue of the validity of those licenses never would have arisen if the court had stayed its decision last year. The court knew that Proposition 8 would be on the ballot before it denied the motion to stay that the Alliance Defense Fund filed on behalf of the Proposition 22 Legal Defense and Education Fund. What motivated the justices to allow the creation of this unnecessary controversy-one that the court then "resolved" contrary to the clear language of the amendment? Was the court deliberately setting the stage for an "equal protection" claim under the federal Constitution? We will see.

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