6-1 upholding the Prop, 7-0 upholding existing marriages. My prediction was pretty good:
There are basically two questions before the Court. First, should the court strike Prop 8. For that, my final on the record prediction is, no, they won’t strike Prop 8, and I’m going to say the vote will be 5-2. Second, Prop 8 apply retroactively to the gay marriages that occurred between the earlier Cal Supreme case and Prop 8. They will say no, those marriages are valid 4-3, the same that ruled previously. There’s a chance this is 7-0 since the law on retroactivity is clear: it must be explicit in the law, and it’s not explicit.
Now I need to read the opinion to see what else it says.
Update I: I think we need to take a look back through some of the older voter initiative constitutional amendments and see if this new decision might revive them.
The petitioners in the Marriage Cases asserted that this language was intended and should be interpreted to apply only to marriages entered into in a jurisdiction other than California, but this court unanimously rejected that contention, concluding that the statutory language in question reasonably must be interpreted to apply to marriages performed in California as well as to those performed in other jurisdictions. (43 Cal.4th at pp. 796-801.) In light of that holding, and the background and “legislative” history of Proposition 8 contained in the ballot pamphlet materials relating to that measure, it is clear that the section added to the California Constitution by Proposition 8 — which contains language identical to that found in Family Code section 308.5 — applies both to marriages performed in California and to those performed in other jurisdictions.
* * *
First, as we already have noted, in light of the interpretation of the language of Proposition 22 in the Marriage Cases, supra, 43 Cal.4th at pages 796-800, as well as the history of Proposition 8 itself, there is no question but that article I, section 7.5 ― the section added by Proposition 8 to the California Constitution ― properly must be interpreted to apply both to marriages performed in California and to marriages performed in other jurisdictions.
This would seem to suggest that out of state marriages are invalid. But when? What if they occurred before Prop 8?
The opinion goes out of its way to say that the only thing taken away here is the word “marriage” not its substantive rights. In other words, separate but equal.
Werdegar’s concurrence is interesting, but I’m a bit disappointed—I thought she would be the 2nd vote to strike.