Moving Beyond the 'Immutability Debate' in the Fight for Equality After Proposition 8

Abstract

On May 15, 2008, the California Supreme Court issued its historic decision regarding marriage rights for same-sex couples. In the course of its opinion, the court found that classifications based upon sexual orientation are subject to the protections of strict scrutiny for purposes of the state's equal protection clause. The court also found that marriage is a fundamental right that extends to same-sex couples. On November 4, 2008, 52% of California voters voted for Proposition 8, which purported to amend the state constitution by adding fourteen words in a new clause following the equal protection clause: only marriage between a man and a woman is valid and recognized in California. On May 26, 2009, the California Supreme Court upheld the constitutionality of the amendment under state law. This paper argues that the California Court's May 15, 2008 decision has the continued potential to shape equal protection jurisprudence despite the court's later finding upholding Prop 8. The May 2008 decision that sexual orientation is a suspect classification is undisturbed, and the court's description of sexual orientation as integral rather than immutable provides a firmer foundation for extending rights to sexual orientation minorities.