Proposition 8, the ballot measure brought by anti gay-marriage campaigners to block gay marriages in California, has been upheld by the Supreme Court by a vote of 6-1. This will be a disappointment to many gay rights advocates, but not a surprise as the Supreme Court were open about their opinions as to the validity of Proposition 8 when the measure was first challenged.
The Background to Proposition 8
Proposition 8 was a ballot initiative brought by anti gay-marriage campaigners in California, 2008, who thought the Supreme Court’s decision that offer gay marriages had overstepped its bounds (they overturned Proposition 22 in May which had previously defined LGBTs out of marriage). The campaigners, backed heavily by the Mormon church, petitioned for a public vote on the idea of redefining marriage once again as being solely between a man and a woman. On the November 4th 2008 ballot and state-wide election the public voted and with a majority of 52.5% Proposition 8 was passed. This was not without some controversy however.
The main article of contention was if Proposition 8 was invalid due to the fact that it constituted a revision to the Constitution rather than an amendment. If this was true Proposition 8 would have required Legislature’s approval which it did not have. Others argued this was simply not the case and a misinterpretation of the system (see below). This, as well as two other arguments, were subsequently brought in front of the Supreme Court after the Court agreed to hear testimony on the Proposition 8 case in March, 2009. They were also asked to suspend Proposition 8′s effect until the case was heard and ruled on. This was denied.
The other two main areas of contention were that, if Proposition 8 was upheld, what would be the fate of the 18,000 “gay marriages” already carried out before the ballot measure? Lastly, did Proposition 8 effectively breach the separation of powers doctrine as prescribed by California’s Constitution? To read the briefings on the case, please go here to the California Supreme Court’s records on the Proposition 8 legal history.
During the oral arguments the Justices heard from Kenneth Star, arguing on the side of Proposition 8 who, during his animated speeches, argued convincingly that Proposition 8 did not extend itself further than an amendment; the clause of freedom to marry between same-sex partners was defined away in the same process that rights are normally afforded citizens. Just because the system usually works the other way didn’t mandate that it always had to.
The Justices seemed convinced by this argument and rejected the notion made by Lambda Legal’s rep. Shannon Mintor (asking to delete Proposition 8) that because the court had rejected Proposition 22 by overturning it, that they had to then overturn Proposition 8 to be consistent.
They were also unimpressed with Prop. 8 proponent Starr when he asserted that Proposition 8 had to apply retroactively and nullify marriages carried out between the time the Supreme Court ruled to o.k. same-sex marriage and the November ballot measure that overthrew it. The Justices pointed out that the wording of Proposition 8 did not go that far. In fact, it “changed” the definition, implying that the measure could only prevent future gay marriages for as long as Proposition 8 was upheld by the people.
Today’s decision does offer one glimmer of a silver lining, in that the Supreme Court has decided that those 18,000 or so marriages would be allowed to remain lawful, with the court citing that, at the time they were carried out, gay marriages were legalized and so should be upheld.
Even before the Supreme Court’s decision was announced, pro Prop. 8 activists were decrying the Justices should they decide to overturn Proposition 8 they would be recalled. A group going by the name of the American Civil Responsibilities Union have stated that they must act against “biased, dictatorial appointed judged who ignore the will of the people” stirring the embers of the controversy that occurred when Judges voted to end the death penalty quite a few decades ago.
Proposition 8: What Happens Now?
A series of events have been organized to show support for Marriage Equality throughout America. Go to Marriage Equality USA to find out if an event is happening near you, and download flyers and materials to continue to show your support for same-sex couples wanting the right to marry.
On a political front, the wheels are already in motion for taking Proposition 8 to the 2012 ballot so that California residents can again have their say. Don’t sit back though, sign this Care2 petition to call for a repeal on Proposition 8 now.
Do you want to take even more action right now? Sign this Care2 petition that asks President Obama to uphold his promise and overturn the Defense of Marriages Act so that gay marriages can be recognized federally. This will be a huge gain for gay rights, and if Proposition 8 has taught us anything, it’s that complacency can not be allowed to creep in to our hearts.
Lastly, Proposition 8 has also fuelled debate as to whether a separation of religion and state is needed to ensure gay rights and true civil liberties. Proponents argue that personal religious beliefs should not be enshrined in law, as in this case where the definition of marriage is defined as one man and one woman. Off the back of the Proposition 8 decision, I’d be interested in hearing your thoughts.