Same-sex marriage (SSM) and
domestic partnerships in California
Activity on Proposition 8
during early 2009-MAR.
"Dan White: Hero. Killing a queer." Sign carried in front of the
California Supreme Court building on 2009-MAR-05. Cited in an Equality
California's mailing as an example of "...how much work we have to do in
some places to effectively education Californians about our humanity and right
to live as well as the freedom to marry."
2009-MAR-02: Senate approves SR 7:
The state senate approved a resolution that described Prop 8 as an major revision of the constitution
that is unconstitutional because it was not
pre-approved by the Legislature. The vote was 18 to 14 in favor of the
resolution. The LA Times
"Sen. Mark Leno (D-San Francisco) said the initiative is a fundamental
revision to the document, not an amendment, and therefore required
deliberation by the Legislature and a two-thirds vote of both houses to put it
on the ballot."
" 'Do we have a constitutional democracy in California, or do we have mob
rule?' Leno asked his colleagues..." 1
2009-MAR-02: House approves HR 5:
The House passed HR 5 by a vote of 44 to 27; it is similar to SR
Assemblyman Van Tran, (R-Garden Grove) said: "As a non-binding resolution
with no force of law, HR5 does nothing except further politicize this process
a few days before the court hearing," said
Assemblyman Joel Anderson, (R-Alpine), said: "Stealing the term marriage
from people (is) not a right. That's going over the brink."
Anderson's statement is interesting, because marriage itself was stolen from same-sex couples by
Prop. 8, not just the term "marriage."
2009-MAR-04: Items that may influence the court's decision:
Court structure: The court currently consists of six Republicans and one moderate
Attorney General: The normal practice for attorneys general is to support
whatever constitutional amendments and other measures are passed by public vote. However,
Attorney General Jerry Brown decided to break with tradition by opposing the
implementation of Prop. 8. He argues that it violates inalienable or natural
rights, and that Prop. 8 basically creates an internal conflict within the
California Constitution. Some sections guarantee equal rights to marry, and
Prop. 8 takes
Aurelio Rojas of the McClatchy Newspapers states:
"Brown is contending that the [Prop. 8] measure violates the
California Constitution's inalienable rights to liberty and privacy that cannot
be eliminated without compelling reasons. He maintains those rights include the
right to marry, which same-sex couples had for five months last year [in
mid-2008]. ... Brown ... is citing the California Supreme Court's
decision to strike down Proposition 22 -- the same
court decision that Proposition 8 overturned.
Pro-equality organizations and cities: Lawyers of civil rights groups, homosexual advocacy
groups, the City of San Francisco and other local governments are arguing from a
different perspective. They assert the Prop 8 is a major revision to the
state constitution not a minor amendment. Major revisions must be first
approved by the state Legislature by a two-thirds vote before being placed on
the ballot. This was not done in the case of Prop. 8; which was a citizen
initiative that picked up a sufficient number of supporting signatures to be placed on the ballot.
Religious and social conservatives: Some groups have announced
that they will target for impeachment any judge who votes against the
constitutionality of Prop. 8.
Past statement by the court: In 2009-MAY, when the California
Supreme Court overturned Prop. 22, it stated:
"... we conclude that, under this
state's Constitution, the constitutionally based right to marry properly must be
understood to encompass the core set of basic substantive legal rights and
attributes traditionally associated with marriage that are so integral to an
individual's liberty and personal autonomy that they may not be eliminated or
abrogated by the Legislature or by the electorate through the statutory
initiative process." 3
The intent of Prop. 8 was to eliminate the right to marry
for one group in California -- same-sex couples. At first glance, it might seem
that if the court were to support the implementation of Prop. 8, it would be
overturning its own ruling. However, Prop. 8 was not a "statutory initiative"
like the earlier Prop. 22.
It was an alteration to the Constitution.
Legal experts: They differ about the court's likely decision:
Gerald Uelmen, a law professor at Santa Clara University
suggests that the court will reject both arguments, and rule in favor of the
constitutionality of Prop. 8.
Erwin Chemerinsky, dean of the University of California
Irvine School of Law, predicts that the court will decide whether Prop. 8 is a revision or amendment,
and act accordingly. 3
Kenneth Starr, professor at the Pepperdine School of Law
believes that there is inadequate precedent for the court to Prop 8 either as a
result of the revision/amendment argument, or based on a violation of separation
of powers. 4
We normally try to objectively report all sides to each issue,
and keep our own opinions to ourselves. But this is a very important court
decision that could forcibly divorce almost 40,000 Californian adults against
their will and make marriage a special privilege that is once more restricted to
One of the main functions of a state constitution is to protect
the rights of minorities from the will -- often called the tyranny -- of the
majority. Mark Rosenbaum, legal director of the ACLU of Southern California,
"It is one of the most important cases in the history of the
California Supreme Court. The core tenet of our constitutional democracy is that
fundamental rights of historically disadvantaged minorities are not dependent on
the whim of the majority." 5
Today, there is widespread animosity by some of the public against various
bisexuals, transsexuals, transgender persons, Muslims, anyone who looks Middle
Eastern, Agnostics, Atheists, Mormons, Roman Catholics, fundamentalist and other
evangelical Christians, etc. In the state and throughout the nation, the percentage of persons
who identify themselves as Christian is decreasing even as the percentage of
Atheists, Agnostics, and NOTAs (None of the Above -- people not affiliated with
any religion --) is increasing. Today's majorities could easily become tomorrow's minorities.
If Prop 8 is upheld by the court, then any group could target
any minority that is even temporarily in disfavor. Any of the minority's freedoms
could be restricted. 50% plus one vote would be the only requirement for almost
any proposition to alter the state constitution.
Another factor is the instability that acceptance of Prop 8
might bring to the state. It passed by a mere 2% of the vote in 2008-NOV.
Because of the makeup of the voters in that election, there is every likelihood
that if the vote were repeated today or in 2010, a proposition similar to Prop 8 would be rejected. One could
imagine propositions restricting or restoring fundamental freedoms being voted
upon every two years with unpredictable results.
Pepperdine law school Dean Kenneth Starr, commented in his brief
to the court on the narrow win of Proposition 8:
"The people ultimately decided. Under our system of constitutional government,
that is the end of the matter." 5
But he is clearly wrong. According to the Los Angeles Times:
"If justices uphold the proposition, gay marriage backers plan to put their
own measure before voters perhaps as soon as 2010 to re-amend the state
Constitution to allow the marriages. If the justices toss out Proposition 8,
some gay-marriage opponents have talked of putting something on the ballot
themselves, either to again ban gay marriage or to oust Supreme Court justices
or both." 6
It is within the long term interest of every citizen of
California that Prop. 8 be declared unconstitutional. If Prop. 8 is not a major
revision, I don't know what would be.
2009-MAR-04: Supreme Court may already have made up its mind:
Mara Dolan of the Los Angeles Times has suggested that the court
may have already decided the case, on the basis of written submissions and amici
"... California Supreme Court may reveal Thursday [2009-MAR-05]
whether it intends to uphold Proposition 8, and if so, whether an estimated
18,000 same-sex marriages will remain valid, during a high-stakes televised
session that has sparked plans for demonstrations throughout the state."
"By now, the court already has drafted a decision on the case, with an author
and at least three other justices willing to sign it. Oral arguments sometimes
result in changes to the draft, but rarely do they change the majority position.
The ruling is due in 90 days. ..."
"Most legal analysts expect that the court will garner enough votes to uphold
existing marriages but not enough to overturn Proposition 8. The dissenters in
May's 4-3 marriage ruling said the decision should be left to the voters. ..."
"One conservative constitutional scholar has said that the court could both
affirm its historic May 15 ruling giving gays equality and uphold Proposition
8 by requiring the state to use a term other than 'marriage' and apply it to
all couples, gay and straight."
" 'The alternatives are for the court to accept Proposition 8 and authorize
the people to rewrite the Constitution in a way that undermines a basic
principle of equality,' said Pepperdine law professor Douglas Kmiec. If the
court overturns Proposition 8, 'that is the short course toward impeachment'."
During the oral arguments, only Justice Carlos R. Moreno and
Kathryn Mickle Wergegar suggested that the court could invalidate Prop. 8 as an
illegal constitutional revision. Chief Justice Ronald M. George commented that
constitutional amendments had stripped away individual rights in the past.
Justice Joyce L. Kennard indicated that those working for equal rights for
persons of all sexual orientations could create a new proposition for election
day in 2010 that would repeal Prop. 8.
On the other hand, most -- perhaps all -- of the Justices
appeared to support allowing the almost 40,000 gays lesbians and bisexuals that
married same-sex partners in California be allowed to continue to be married.
Raymond C. Marshall of the Asian Pacific American Legal Center
argued that Prop. 8 was an unconstitutional deprivation of the right to marry
that targeted same-sex couples. He said that that nothing is more fundamental
than the Constitution's equal protection doctrine.
Former Whitewater special prosecutor Kenneth Starr argued in
favor of Prop. 8. He said that the people's power to change their Constitution
overrules the court's ability to invalidate Prop. 8. He said: "One of the
inalienable rights articulated in the Constitution is control over the
Christopher E. Krueger represented the office of Attorney
General Jerry Brown's and opposed Prop. 8. He argued that neither an amendment
nor a revision to the Constitution can deprive people of a fundamental right,
including the right to marry.
The court ruling is expected within the next 90 days; i.e. by
early 2009-JUN. 7
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
Maura Dolan, "California Supreme Court may reveal stance on Prop. 8 on
Thursday," Los Angeles Times, 2009-MAR-04, at:
Jessica Garrison, "Both sides in California's Prop. 8 battle look ahead to
2010: The gay-marriage ban issue could be back on the ballot in two years.
Regardless, backers and foes are organizing supporters, waging a fierce public
relations campaign and considering their next moves," Los Angeles times,
"California Supreme Court signals mixed response to Proposition 8," Los
Angeles Times, 2009-MAR-05, at: