Prof Farlei Martins envia a seguinte matéria
The New York Times
May 27, 2009
California Supreme Court Upholds Ban on Same-Sex Marriage
By JOHN SCHWARTZ
The California Supreme Court upheld a ban on same-sex marriage today,
ratifying a decision made by voters last year that runs counter to a growing
trend of states allowing the practice.
The decision, however, preserves the 18,000 marriages performed between the
court’s decision last May that same-sex marriage was lawful and the passage
by voters in November of Proposition 8, which banned it. Supporters of the
proposition argued that the marriages should no longer be recognized.
Today’s opinion, written by Chief Justice Ronald M. George for a 6-to-1
majority, said that same-sex couples still have the right to civil unions,
which gives them the ability to “choose one’s life partner and enter with
that person into a committed, officially recognized, and protected family
relationship that enjoys all of the constitutionally based incidents of
marriage.” But the justices said that the voters had clearly expressed their
will to limit the formality of marriage to heterosexual couples.
Justice George wrote that Proposition 8 did not “entirely repeal or
abrogate” the right to such a protected relationship, but argued that it
“carves out a narrow and limited exception to these state constitutional
rights, reserving the official designation of the term ‘marriage’ for the
union of opposite-sex couples as a matter of state constitutional law.”
Heated reaction to the decision began immediately, with protestors blocking
traffic in front of San Francisco City Hall, their hands locked.
Shannon Minter, the legal director for the National Center for Lesbian
Rights, called the decision “a terrible blow to the thousands of gay and
lesbian Californians who woke up this morning hoping and praying their
status as equal citizens of this state would be restored.” The decision, he
added, “made it painfully clear that we must go back to the voters to
Those who backed Proposition 8 were elated. Andrew M. Pugno, general counsel
for ProtectMarriage.com, the leading group behind last year’s initiative,
said he and his allies were “very gratified” by the decision. “This is the
culmination of years of hard work to preserve marriage in California,” he
said in an e-mail message. “The voters have decided this issue and their
views should be respected.”
The same court had ruled in May that same-sex couples enjoyed the same
fundamental “right to marry” as heterosexual couples. That sweeping 4-3
decision provoked a backlash from opponents that led to Proposition 8, which
garnered 52 percent of the vote last November after a bitter electoral
The opinion marks a new round in the long-running battle in California over
the issue, and will almost certainly lead to a counter-initiative intended
to overturn Proposition 8, which changed the state constitution, as early as
The opinion focused on whether the use of a voter initiative to narrow
constitutional rights under Proposition 8 went too far.
Supporters of same-sex marriage, who filed several suits challenging the
proposition, argued that the change to the state’s constitution was so
fundamental that the initiative was not an amendment to the constitution but
a “revision,” a term for measures that rework core constitutional
Revisions, under California law, cannot be decided through a simple
signature drive and majority vote, which is what led to Proposition 8; they
can only be placed on the ballot with a two-thirds vote by the legislature.
But the justices said the proposition was an amendment, not a revision. It
has historically been rare for the state’s courts to overturn initiatives on
the ground that they are actually revisions, and many legal scholars deemed
the challenge against Proposition 8 a long shot.
The question of whether Proposition 8 was an amendment or revision was the
centerpiece of the oral arguments before the State Supreme Court during its
hearing on March 5.
The justices who had issued the ringing support of same-sex marriage in 2008
presented a far less supportive front during the three-hour hearing. A
number of justices who had voted in the majority in the 2008 case,
particularly Joyce L. Kennard, strongly suggested in their questions from
the bench that they were reluctant to overturn the will of the voters or to
undercut the initiative process.
In questions that clearly anticipated the logic of today’s majority opinion,
the justices had seemed to be seeking a middle ground that would allow the
rights they had affirmed the year before to be preserved in the form of
civil unions, which would be different from marriage in name only. Justice
Kennard suggested that the substantive rights of gays were the same after
the proposition, and all that had changed was “the label of marriage.”
That distinction was deeply dissatisfying to an attorney for plaintiffs,
Shannon Minter, who argued that without the right to the word “marriage,”
same-sex couples would find “our outsider status enshrined in our
In the months since the case was argued, three other states have legalized
same-sex marriage. On April 3, Iowa’s supreme court struck down a state
statute that limited civil marriage to a union between a man and a woman —
and cited California’s 2008 decision repeatedly in support of its ruling.
Less than a week later, the Vermont Legislature narrowly overrode a veto by
Gov. Jim Douglas of a bill that allowed same-sex couples to marry. Then on
May 6, Maine’s legislature, too, passed a bill allowing same-sex marriage,
and Gov. John Baldaci signed it.
Initiatives are also moving forward in New York and New Jersey; a similar
measure has stalled in the New Hampshire legislature by a slim margin this
month, but could come up for a new vote next month.
At the same time, attitudes of Americans toward same-sex marriage favor
liberalization of the practice. In an April CBS/New York Times poll, 42
percent of those surveyed favored same-sex marriage, up from 21 percent at
election time in 2004, when it was a wedge issue during the presidential
campaign. That poll suggests the trend will continue into the future: 57
percent of the respondents favored legal recognition for same-sex marriage,
compared with 31 percent of respondents over the age of 40.
The sole dissenting vote in Tuesday’s decision came from the court’s only
Democrat, Justice Carlos R. Moreno, who had been mentioned as possible
choice by President Obama for the United States Supreme Court. He wrote that
Proposition 8 means “requiring discrimination,” which he said “strikes at
the core of the promise of equality that underlies our California
Constitution” -- and, he added, “places at risk the state constitutional
rights of all disfavored minorities.”
The language of Chief Justice George’s decision seemed almost regretful, as
he wrote that “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.” Instead, he wrote, “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.”