Prop 8’s Pyrrhic Victory

So Prop 8 has been upheld by the California Supreme Court, but it is largely Pyrrhic victory for Prop 8. One of the key arguments put forward by supporters of Prop 8 was that it was necessary to protect religious freedom. The responsible version of this argument is that because In re Marriage Cases enshrined gay rights in the California state constitution there was nothing to keep the rights of religious groups and individuals from being balanced away. Of course, the California Supreme Court insisted in In re Marriage cases that its ruling left intact the protection of religious freedom under the state constitution, but in Benitez v. North Coast Women’s Care Medical Group, Inc. et al. the California Supreme Court cited In re Marriage Cases as authority for rejecting the freedom of religion and freedom of association claims of a religious doctor who refused to artificially inseminate a lesbian couple on grounds of religious conscience. If this sort of holding bothers you and you thought that Prop 8 would put a stop to it, you are mistaken. The Court wrote in its ruling upholding Prop 8:

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 … .

Contrary to petitioners’ assertion, Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right of privacy and due process … . Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles … . Instead, the measure 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 … but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws …

I have not read the Court’s full 136 page behemoth of an opinion. Life is short and I have other things to do. However, my reading of this passage is that gay equality rights remain firmly entrenched in the California state constitution. Put another way, Prop 8’s passage has no effect on the validity of the Court’s wider ruling in In re Marriage Cases or the continuing vitality of cases like Benitez.

Now as it happens, I think that as a legal matter threats to freedom of religion created by entrenching gay equality rights in state constitutional law are not as serious as many have claimed. On the other hand, I do think that such concerns are real, and frankly I find cases like Benitez troubling. It turns out, however, that as a legal matter Prop 8 had nothing to do with this debate.

21 comments for “Prop 8’s Pyrrhic Victory

  1. Rich
    May 28, 2009 at 8:15 am

    The New York Times just ran an article about expanded protection for religious institutions within laws that approve same sex marriage. It seems most, if not all, of the states that are approving same sex marriage are including these provisions in their laws. You just never hear that in the main stream media. The current talk here in Calif is to include this type of protection in the next initiative to overturn prop 8 so as to nullify that argument on the next go around. If that is the legacy of Prop 8, than I think it was worth the effort.

  2. May 28, 2009 at 8:16 am

    Nate, in addition to Benitez, the California legislature has passed a myriad of new laws giving marriage rights to same-sex partners in California in everything but name. Many supporters of Prop. 8 knew they were fighting a largely symbolic battle simply to keep the name “marriage” confined to men and women. While the victory may have been pyrrhic (difficult word to spell), it is worth noting that according to Gallup support for gay marriage is actually slightly down since 2007. Personally, I attribute that to the nasty tactics of the gay rights extremists and the education campaign that is part of the Prop. 8 effort. So, you win some, you lose some.

    One last historical note: Just three decades ago, the ERA appeared certain to pass. Now, it is basically dead. Things that appear inevitable (such as gay marriage) sometimes are not.

  3. Dan
    May 28, 2009 at 8:17 am

    Religions claim that gay rights bring a downfall to civilization. If civilization doesn’t get destroyed, it sure makes the religions look dumb. The positions taken by religions on this issue just never made that much sense to me. There are far more pernicious and deadly threats to marriage and family than gay marriage. If religions really want to protect marriage and families, they would put all their efforts into keeping current marriages intact. Divorce is the most potent and deadly force out there destroying families and marriages. Let’s see religions put nearly the same effort they put against gay marriage into a “war on divorce.”

  4. Dan
    May 28, 2009 at 8:18 am


    The New York Times just ran an article about expanded protection for religious institutions within laws that approve same sex marriage….You just never hear that in the main stream media.

    Is the New York Times not mainstream enough for you? ;)

  5. Mark B.
    May 28, 2009 at 8:35 am

    Actually, Dan, they’re way over near the left bank. :-)

  6. Mark B.
    May 28, 2009 at 8:38 am


    It would be easier to spell pyrrhic if we could remember him from whence the word came, that now nearly forgotten General Pyrrhus (?????? if you prefer Greek).

  7. May 28, 2009 at 9:09 am

    Dan: For what it is worth, I am a member of the Mormon church, and I dare say that I hear far more sermons on keeping my family together than I have ever heard on gay marriage. (Indeed, living in Virginia, I can’t think of a single sermon that I have EVER heard on gay marriage.) Likewise, my own church has created an extensive system of lay counselors for troubled couples, social services agencies, and the like.

  8. May 28, 2009 at 9:11 am


    Portions of your post (and its implications) are wrong as a matter of law. Benitez is at 44 Cal.4th 1145, and it’s really not very long.

    The court’s ruling was unanimous. The unanimous majority opinion does not cite Marriage Cases at all. It is entirely based on the Unruh Antidiscrimination Act, and its legal analysis is entirely on Unruh — is the statute a valid statute of general applicability; how is it affected by Smith and Lukumi; etc.

    Justice Baxter, in a one-person concurrence, cites to his own Marriage Cases dissent, in one paragraph. He does this to somewhat disagree with the majority’s ruling:

    I join the majority’s narrow conclusion that, on the facts of this case, defendants have no affirmative defense, based on the free exercise of religion clauses of the federal and state Constitutions, against plaintiffs’ Unruh Civil Rights Act claims of discrimination on the basis of sexual orientation. With respect to the application of article I, section 4 of the California Constitution to this issue, I do not necessarily believe the state has a compelling interest in eradicating every difference in treatment based on sexual orientation (cf. In re Marriage Cases (2008) 43 Cal.4th 757, 875-877, 76 Cal.Rptr.3d 683, 183 P.3d 384 (conc. & dis. opn. of Baxter, J.) [sexual orientation is not suspect classification; statutory definition of marriage as between man and woman satisfies rational basis test] ). However, I agree that California has a compelling interest, furthered by the Unruh Civil Rights Act, “in ensuring full and equal access to medical treatment irrespective of sexual orientation” (maj. opn., ante, 81 Cal.Rptr.3d at p. 719, 189 P.3d at p. 969, italics added), including a right to full medical assistance in establishing a pregnancy.

    That is the *only* citation to Marriage Cases in any part of the Benitez opinion.

    The idea that the Benitez majority uses Marriage Cases in its decision is wrong.

  9. May 28, 2009 at 9:28 am

    On the broader question of whether Prop 8 affects Marriage Cases underlying ruling that sexual orientation is a suspect classification — it’s clear that it doesn’t change that. But then, that was one of its selling points, that it affected *only* the marriage label, and didn’t change any other part of gay rights.

    That selling point was inconsistent with other Prop 8 selling points (the alarmist claims Prop 8 was necessary to prevent cases like Benitez); but that’s because those points were based on factually incorrect reading of the law. I realize that some of those statements were made by church leaders, but they were nonetheless legal misstatements.

  10. Nick Literski
    May 28, 2009 at 9:50 am

    Religions claim that gay rights bring a downfall to civilization.

    This reminds me of a discussion I recently had, where a female friend claimed that “every ancient society that openly practiced homosexuality has collapsed.” My reply: “Well, every ancient society that DID NOT openly practice homosexuality has ALSO collapsed—that’s why we call them ANCIENT societies!” :-)

  11. May 28, 2009 at 10:01 am

    Kaimi: Thanks for the correction re the citation of In re Marriage cases in Benitez. However, I think that my larger point stands. In the Benitez case the court was doing more than simply apply the Smith framework. It also suggested that the Urah Act would pass muster under strict scrutiny. (As I read the case it didn’t actually reach the issue because it was not raised by the defendant and California law is unsettled as to the level of scrutiny to be applied under the California Constitution.) This would require a compelling state interest in eliminating discrimination. I do think that In re Marriage Cases would support such a proposition, in that the Court found that sexual orientation was a suspect classification. As a doctrinal matter finding that X is a suspect classification is not the same thing as finding that the elimination of discrimination against X is a compelling state interest. This is why I think that the legal claims made about the negative effects of In re Marriage Cases were alarmist. On the other hand, I think that finding that X is a suspect classification massively strengthens the argument that eliminating discrimination against X is a compelling state interest. Regardless of how one reads the tea leaves on this, however, it seems to me that Prop 8 had no impact on the debate one way or another because while same sex marriage is no longer required by the California Constitution, the larger constitutional holding in In re Marriage Cases is still good law.

    On the merits of discrimination cases like this one, I think that there ought to be a compelling state interest in insuring that citizens have access to medical care regardless of sexual orientation. On the other hand, I don’t think that there is a compelling state interest in eliminating all discrimination by medical care providers. Another way of saying this, is that I think we should consider anti-discrimination laws primarily as breaking up exclusionary cartels that deny access, rather than punishing citizens with idiosyncratic beliefs that pose no threat to broader access to medical care by others.

  12. May 28, 2009 at 10:03 am

    “That selling point was inconsistent with other Prop 8 selling points (the alarmist claims Prop 8 was necessary to prevent cases like Benitez); but that’s because those points were based on factually incorrect reading of the law. I realize that some of those statements were made by church leaders, but they were nonetheless legal misstatements.”

    This, I think, is absolutely right. The only difference I think that I have with Kaimi is that I think that In re Marriage Cases strengthens the claims of discrimination laws in cases like Benitez. I am also probably less sympathetic to a dignitary understanding of discrimination law than is Kaimi.

  13. May 28, 2009 at 10:08 am

    Of course, I think that today Congress could pass a law requiring churches to perform gay marriages or cease performing marriages and I think that the law would pass muster under the free exercise clause and perhaps under freedom of association as well.

  14. May 28, 2009 at 10:25 am

    Nate: Thanks for the quick summary.

    Dan: Perhaps it might be worthwhile to re-read “The Family:A Proclamation to the World” before painting the LDS Church and all religions with a broad stroke of condemnation over gay marriage. Moreover, I would submit to you that there are several other world religions who put an equally strong focus on preserving marriage and family.

  15. May 28, 2009 at 10:33 am

    I think that you’re right, that Marriage Cases probably strengthens the claims of plaintiffs in Benitez sort of cases, but it’s really just additional cumulative evidence. As Benitez makes clear, those plaintiffs already have a very strong remedy available in the form of Unruh Act claims, as the court has interpreted the Act.

    And I think you’re right that Smith and Lukumi sufficiently eviscerate the Free Exercise clause, that Congress could pass a law requiring churches to perform gay marriages, and it would pass muster. It’s Lukumi that says:

    “A law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.”

    And remember, Lukimi had no dissents (!).

    It did have a wacky web of concurrences, though. And who were the two justices who took a stand against the limits on free exercise? Justice Blackmun and Justice Souter, that’s who.

    Justice Scalia? He was the author of the Smith opinion. :)

  16. Dan
    May 28, 2009 at 11:22 am


    I’m a Mormon too. And yes, our church is probably an exception to the religious conservative rule in that they really do press hard for the sanctity of marriage within the heterosexual world.

    I’m just saying, church members spent $20 million dollars on something that really doesn’t threaten traditional marriage all that much. I wonder how many marriages could be saved if that $20 million were spent on saving failing marriages. Were any ACTUAL marriages saved by the $20 million spent on Prop 8? Were any actual marriages even threatened by gay marriage? I know my own marriage is in no way shape or form threatened by gay marriage. I know my own family is in no way shape or form threatened by gay marriage. But the threat of divorce IS there. Divorce CAN actually destroy my marriage and my family (it did my parents’ marriage).

  17. Nate Oman
    May 28, 2009 at 11:29 am

    Dan: Suppose that the $20 million could have been spent to save the marriage of Mr. and Mrs. Smith, who sadly as a result of this neglect are now divorced. Does their divorce in any way threaten your marriage? I suspect that the answer is “No.” The moral of the hypothetical, as I see it, is that asking whether X threatens my marriage is probably the wrong question. Rather, we should ask the question of what threatens marriage as a social institution. Now, there is lots of room for disagreement here. For my money, I think that SSM undermines the social institution of marriage by further defining it in terms of personal affection and commitment rather than in terms of social duties and gender relationships, but I think that the effect of SSM on the social institution of marriage is slight. Accordingly, the effort spent on Prop 8 strikes me as disproportionate and poorly allocated. However, I don’t think that this conclusion has much of anything to do with what is or is not a threat to my own marriage.

  18. Dan
    May 28, 2009 at 11:43 am


    You make good points. I shouldn’t look at it in terms of what affects my own marriage, because you’re right, what Mr. and Mrs. Smith do with their marriage also won’t affect my own.

    However, my point about divorce being far more destructive on the social institution still stands. If we show that marriage doesn’t end in painful suffering half the time, more people will be more willing to go through it than not, I think.

  19. Lon
    May 28, 2009 at 1:32 pm

    To attempt to reconcile what Dan and Nate are saying…

    I believe that if marriage is defined “in terms of personal affection and commitment rather than in terms of social duties and gender relationships”, it will be more like to “end in painful suffering half the time”. The two are related – just not necessarily with a straight line.

  20. May 30, 2009 at 5:42 pm

    It seems to me that what we have here is an erosion of understanding what it means to discriminate. Today’s usage of the word is vastly different from the same word we used 30 years ago.

    There is bad discrimination and good discrimination. There is bad judgment and good judgment. Sometimes I wonder if we have found it politically expedient to forget those basic truths.

  21. Fred Gedicks
    June 1, 2009 at 4:32 pm

    #15 Kaimi, is wrong (and Nate, too, if he agrees with Kaimi’s characterization of his position), although perhaps Kaimi was just being imprecise since it has the character of a throw-away line. Anyway, there is no plausible reading of Smith and Lukumi under which religious groups could be forced to perform gay marriages, or any other marriage of any description.

    What a state might do is condition the power to solemnize marriages on the cleric’s agreement not to discriminate on the basis of race, ethnicity, gender, religion, or sexual orientation in exercising the authority. This strikes me as theoretically possible but poltiically very unlikely, and problematic under other constitutional theories such as freedom of association amd church autonomy (which the Court has never bothered to reconcile with Smith). Really, does someone out there think it likely that the federal courts would uphold a state’s power to make a Catholic priest perform a Catholic wedding for nonCatholics, even if the statute is religiously neutral and generally appilcable?

    But even if other protective theories failed, it would always be open to a church to opt not to have its clerics exercise the state’s power of solemnization. In case of Latter-day Saints, that would mean we’d all have to have a quickie civil marriage by the mayor or a judge or that Elvis guy in Vegas before heading off to the temple for what to us would be the main event, shorn of *legal* but not theological significance. As others have observed before, this is the situation for Saints already in many other countries.

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