Legal Experts on Prop. 8 Decision

'It was fundamentally a good message' Princeton Law School professor of jurisprudence Robert George told CNSNews.com.

WASHINGTON (CNSNews.com) - Some of the nation's top constitutional law experts - including top conservative law professors - praised a California Supreme Court decision issued Tuesday upholding last year's marriage initiative, Proposition 8.

Grassroots activists on both sides of the marriage question, however, were angered by the decision.

"It was fundamentally a good message," Princeton Law School professor of jurisprudence Robert George told CNSNews.com.

Proposition 8 was approved last November by 52.3 percent of California voters. It added Section 7.5 to Article 1 of the California constitution, which reads, "Only marriage between a man and a woman is valid or recognized in California."

The voter-approved initiative had overruled the same California Supreme Court, which in May of 2008 voted 4-3 to impose "same-sex marriage" on the Golden State.

"The court ruled that Proposition 8, which overturned a bad Supreme Court ruling that imposed same-sex marriage on the state of California, was constitutionally legitimate, that it was not an 'unconstitutional' constitutional amendment, if there could be such a thing," George said.

The 6-1 decision roundly defended the right of the people of California to pass a state constitutional amendment, he said.

"A majority of the justices who voted the wrong way in the original decision this time voted the right way to respect the will of the people to form and reform their own constitution," George said. "The people's will has prevailed, marriage in California will return to being a man and a woman."

The down side, according to George, one of the nation's most prominent legal scholars and a conservative defender of traditional marriage, was that the Court upheld the validity of the same-sex marriage licenses issued in California during the brief time homosexual marriage was legal -- between June 16 and Nov. 4 of last year.

"I was expecting that - I think most people were expecting that," George said. "That's a little dark cloud in what otherwise is a very sunny sky in California."

Mat Staver, founder of Liberty Counsel and dean of the Liberty University School of Law, represented the Campaign for California Families in the case.

Staver said the decision upholding the 18,000 same-sex marriages was "an oddity" and an "aberration" in an otherwise good decision.

"The 13th Amendment, when it abolished slavery, didn't give people grandfather rights that existed before, and when the 18th Amendment, which was the Prohibition amendment, was ratified, it didn't give people grandfather rights to manufacture or transport intoxicating liquor," Staver told CNSNews.com.

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"And here, when an amendment says, 'Only marriage between a man and a woman shall be valid or recognized,' that means that after that, no same-sex marriage shall be valid - and any one that came before should be null-and-void," Staver said.

"But I think at the end of the day, that part is just a footnote in the overall matter of the constitution marriage amendment being upheld and the definition being reaffirmed as one man and one woman," he added.

UCLA law professor Eugene Volokh, a proponent of same-sex marriage, said the decision is "exactly right."

"(The court's) conclusion that Proposition 8 is constitutionally permissible strikes me as exactly right. It's conclusion that the existing same-sex marriages are not affected by Proposition 8 may be a little bit more controversial, but on balance it seems quite sensible, as well," Volokh said.

Court: Prop. 8 'Amended' State Constitution

The Court's decision hinged on the question of whether Proposition 8 was an amendment to the state constitution -- or was a major revision.

The justices said the proposition was an amendment, not a revision.

"We emphasize only that among the various constitutional protections recognized in the Marriage Cases (i.e., the same-sex marriage decision case) as available to same-sex couples, it is only the designation of marriage -- albeit significant -- that has been removed by this initiative measure," Chief Justice Ronald George wrote in the 138-page opinion. (Justice George is no relation to the Princeton professor.)

"The California Supreme Court reaffirmed that the ultimate power to modify the state constitution is in the people," Volokh told CNSNews.com. "It rejected Attorney General Jerry Brown's argument that somehow the people cannot modify certain supposedly fundamental or inalienable rights. The real question is: 'What are those rights?' And the California Supreme Court said (last year) 'That includes the right to same-sex marriages.' The voters disagreed. The voters' will prevailed."

California Gov. Arnold Schwarzenegger, who said that he believed that "one day, either the people or courts will recognize gay marriage" - indicated that he will uphold the decision.

"Regarding the 18,000 marriages that took place prior to Proposition 8's passage, the Court made the right decision in keeping them intact," the governor said in a statement. "I also want to encourage all those responding to today's Court decision to do so peacefully and lawfully."

Grassroots activists on both sides were, meanwhile, were livid.

Randy Thomasson, president of SaveCalifornia.com, a statewide pro-family organization that took part in the lawsuit, said he was more than disappointed.

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"An arm and a leg have been cut off the natural institution of marriage in California," Thomasson said.

"While it was good that the majority of the justices ruled only man-woman marriages could be performed after Prop. 8 passed, it's wrong and unconstitutional for the judges to permit counterfeit marriages in clear violation of Prop. 8," said Randy Thomasson, president of Save California.com,

Homosexual activists were equally disappointed.

"Today's ruling is a huge blow to Americans everywhere who care about equality. The court has allowed a bare majority of voters to write same-sex couples out of basic constitutional protections," said Human Rights Campaign President Joe Solmonese.

"This ruling is painful, but it represents a temporary setback. There will be a groundswell to restore marriage equality in our nation's largest state, and HRC will not give up until marriage equality is restored in California."

Just don't expect homosexual activists to take this case to the U.S. Supreme Court, said Princeton law professor George.

"After being roundly defeated both at the polls, and at a court that was largely sympathetic, this would not be the case for gay activists to appeal," George said.

"The strategy now will be for them to do their own proposition in 2010, to try to undo Proposition 8, with their own constitutional amendment creating a 'right' to same-sex marriage," he predicted.

Homosexual activist groups Tuesday immediately launched a campaign to get their own initiative on the 2010 ballot.

More than 1 million Californians signed petitions to get the measure on the ballot - and more than 7 million voted to approve Proposition 8 in 2008.

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