California Supreme Court Upholds “Marriage” Constitutional Amendment

[EDITOR’S NOTE: The following article was written by one of A.P.’s auxiliary staff writers who holds a M.Min from Freed-Hardeman University and a J.D. from the South Texas College of Law.]

In Strauss v. Horton, a controversial and highly publicized case, the California Supreme Court recently handed down a surprising decision upholding a California constitutional amendment that states, “Only marriage between a man and a woman is valid or recognized in California.” This case involved a constitutional challenge to California’s Proposition 8, the subject of considerable news coverage during the election in November 2008. The 6-1 decision written by Chief Justice Ron George was issued on Tuesday, May 26, 2009. However, upon closer examination of the court’s opinion, the purported victory may be a victory only in semantics.

This high-profile case is the product of legal wrangling and posturing that has been going on in California for some time now. In 2004, the California Supreme Court ruled in Lockyer v. City and County of San Francisco that public officials in San Francisco acted unlawfully when they issued marriage licenses to homosexual couples. However, the court emphasized that the question of the constitutional validity of California’s current marriage statutes (which limited marriage to a man and a woman) was not before the court at that time (Lockyer v. City…, 2004). In other words, the court was politely soliciting a constitutional challenge to the California statute limiting marriage to a union between a man and woman.

Not surprisingly, the issue of the constitutionality of California’s marriage law was addressed in In re Marriage Cases in 2008. In that case, the court held that homosexual couples are entitled to the protection of the constitutional right to marry contained in the privacy and due process provisions of the Constitution of California. The California Supreme Court reasoned that by granting access to the designation or title of “marriage” to opposite-sex couples and denying such access to same-sex couples, the California marriage statutes violated the privacy and due process rights of same-sex couples and violated their right to the equal protection guaranteed by the Constitution of California (In re Marriage Cases, 2008).

In response to the Marriage Cases, Proposition 8 was passed by a majority of California voters (52.3%) on November 4, 2008 (Strauss v. Horton, 2009). This proposition, which is now a part of the Constitution of California, states in its entirety, “Only marriage between a man and a woman is valid or recognized in California” (Article I, Section7.5). There is no doubt but that Proposition 8 was a legitimate attempt to constitutionally overturn the holding in the Marriage Cases. However, the reach of that effort was significantly curtailed by the court’s recent holding in Strauss v. Horton.

In the March 2000 California election, the California Family Code was revised by Proposition 22 to include the following limitation on marriage: “Only marriage between a man and a woman is valid or recognized in California” (Section 308.5). This is the identical language adopted in Proposition 8. The difference between Proposition 22 in 2000 and Proposition 8 in 2008 is that Proposition 22 amended a California statute, while Proposition 8 amended the Constitution of California. The California Supreme Court held in the Marriage Cases that the California Family Code (amended by Proposition 22), which granted access to the designation “marriage” to only heterosexual couples, but not homosexual couples, was unconstitutional as it violated homosexual couples’ state constitutional rights of privacy, due process, and equal protection (In re Marriage Cases, 2008). The table was now set for Proposition 8, which upon being passed on November 4, 2008, was challenged in court the following day, November 5, 2008, in Strauss v. Horton (2009).

In Strauss v. Horton, the California Supreme Court went to great lengths to reaffirm its holding in the Marriage Cases, and described its holding in the present case as a mere narrow exception to the rule in the Marriage Cases that it is unconstitutional to limit marriage to heterosexual couples. The court went to great lengths to emphasize that the new constitutional amendment “refers only to ‘marriage’ and does not address the right to establish an officially recognized family relationship, which may bear a name or designation other than ‘marriage.’” This was based on the conclusion that “the language of [Proposition 8], on its face, does not purport to alter or affect the more general holding in the Marriage Cases that same-sex couples, enjoy the constitutional right, under the privacy and due process clauses of the California Constitution, to establish an officially recognized family relationship” (Strauss v. Horton). Simply put, Proposition 8 only eliminated the right of homosexual couples to the designation of “marriage” without “otherwise affecting the constitutional right of those couples to establish an officially recognized family relationship” (Strauss v. Horton).

The issue then remained as to what to do with those homosexual “marriages” that took place in California after Proposition 8 was passed. The court estimated that 18,000 “marriages” were entered into by homosexual couples after Proposition 8 was passed until this court’s opinion was released on May 26, 2009. The court held that the amendment, without explicit language to the contrary, must be applied prospectively and not retroactively. That is, the amendment would only be applied as of May 26, 2009, and all homosexual “marriages” after November 4, 2008 and before May 26, 2009 would be recognized as “marriages” in the state of California.

To say that Proposition 8 was a controversial and high-profile matter in California is putting it lightly. The violence that stemmed from this election over Proposition 8 was a matter of public record, although it was somewhat difficult for some to discover these facts due to the limited and biased media coverage. The legal interest in this case was overwhelming. First, the opinion generated by the California Supreme Court was 185 pages. The list of attorneys, special-interest groups, and law firms representing the pro-homosexual agenda in this suit was remarkable (373 attorneys, 153 organizations, and 33 law firms representing the pro-homosexual position; compared with 40 attorneys, 20 organizations, and 5 law firms representing the pro-Proposition 8 position). In other words, this was a highly anticipated and hard-fought legal battle, although somewhat lopsided.

The problem here is not that this purported “victory” for conservative groups appears to be a matter of semantics over the use of the term “marriage.” The problem here is not that the attorneys, special interest groups, and law firms representing the homosexual agenda far outnumber their opponents. The real problem is the fundamental way this battle is being fought. There are numerous legal arguments over the constitutionality of statutes, propositions, equal rights, due process, strict scrutiny, and other terms of legalese. For the moment, the majority of the people support the biblical definition of marriage. History shows that the majority may soon dwindle and marriage laws could be reversed. So the pressing question is where is the call to morality, ethics, godliness, Christianity, and Scripture? In the midst of all this debate about a homosexual lifestyle, there appears to be little to no attention given to these spiritual matters that really count—the very matters that the Framers of the Constitution shared and defended (cf. Miller, 2003). If we continue to fight worldly battles with worldly weapons, worldly arguments, and worldly wisdom, we may occasionally win a battle, but we will ultimately lose the war. “For the weapons of our warfare are not of the flesh, but divinely powerful for the destruction of fortresses. We are destroying speculations and every lofty thing raised up against the knowledge of God, and we are taking every thought captive to the obedience of Christ” (2 Corinthians 10:4-5, NASB). Paul did not use the enticing words of man’s wisdom, but preached Jesus Christ and Him crucified so that the Corinthians’ faith would not rest in the wisdom of men, but in the power of God (1 Corinthians 2:1-5).

This lawsuit is evidence of the culture war that is escalating around us. It is taking place in our capitals, in our legislatures, in our courts, in our schools, in our neighborhoods, and in our homes and churches. A Christian has four choices: (1) fight on the wrong side; (2) remain neutral (which means you are lending unwitting support to the wrong side whether you realize it or not [Matthew 27:24]); (3) fight with the wrong weapons; or (4) fight with the right weapons. I have often heard the phrase, “Don’t bring a knife to a gun fight.” If you are fighting in the culture war that is raging, are you fighting with a proverbial knife when those around you wield superior fire-power?

We must fight, but not physically. Those who resort to physical violence when purportedly taking the “Christian” perspective are clearly in error and do great harm to the cause of Christ. The Bible teaches us not only to correct those in error, but to do so lovingly (Ephesians 4:15). Jesus told Peter to put up his sword because Christ’s kingdom is not of this world, and because those who live by the sword will die by the sword (Matthew 26:52; John 18:36). Moreover, we are commanded to love and pray for our enemies (Matthew 5:44; Romans 12: 17-21). In light of these admonitions, are you fighting in the battle, and are you fighting with the right weapons?

It is time to rally the troops and prepare for war. So, love your enemies and pray for them. Pray for their souls; pray for their hearts to be softened; pray for doors of opportunity to be opened so that God may be glorified. Therefore…

Put on the full armor of God, that you may be able to stand firm against the schemes of the devil. For our struggle is not against flesh and blood, but against the rulers, against the powers, against the world forces of this darkness, against the spiritual forces of wickedness in the heavenly places. Therefore, take up the full armor of God, that you may be able to resist in the evil day, and having done everything, to stand firm. Stand firm therefore, having girded your loins with truth, and having put on the breastplate of righteousness, and having shod your feet with the preparation of the gospel of peace; in addition to all, taking up the shield of faith with which you will be able to extinguish all the flaming missiles of the evil one. And take the helmet of salvation, and the sword of the Spirit, which is the word of God. With all prayer and petition pray at all times in the Spirit, and with this in view, be on the alert with all perseverance and petition for all the saints, and pray on my behalf, that utterance may be given to me in the opening of my mouth, to make known with boldness the mystery of the gospel, for which I am an ambassador in chains; that in proclaiming it I may speak boldly, as I ought to speak (Ephesians 6:11-20, NASB).

May we use these weapons boldly and fearlessly, use them with love, but most important, use them.


California Family Code, [On-line], URL:

Constitution of California, [On-line], URL:

In re Marriage Cases, 43 Cal.4th 757 (Cal. 2008).

Lockyer v. City and County of San Francisco, 33 Cal.4th 1055 (Cal. 2004).

Miller, Dave (2003), “The Founders on Homosexuality,” [On-line], URL:

Strauss v. Horton, (Cal. May 26, 2009), [On-line], URL:


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