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.