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Same-sex marriage (SSM) and
domestic partnerships in California

Prop 8: late 2009-MAR to MAY: Polling data;
Supreme Court ruling; repealing Prop. 8.

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2009-MAR-10: Marriage polls in California:

Field Research Corp conducted a poll between 2009-FEB-20 and MAR-01 of registered voters in California. 1 They asked subjects whether they would vote for or against a new constitutional amendment that would allow same-sex couples to marry. Field Research has been measuring public opinion on this topic since 1977. As expected, there were "... large differences in voter preferences by party, political ideology, age, marital status, gender, religion and region of residence."

The main question asked was:

"Suppose in the next statewide general election a constitutional amendment qualified for the ballot which asked voters to allow same-sex couples to legally marry in California.

If a constitutional amendment like this were on the ballot and the election were being held today, would you vote Yes to allow same-sex couples to marry or No to continue to apply marriage laws only to a man and a woman?"

By a very slim majority, Californians supported SSM. Some polling results were:


Over all: 48% would vote yes to permit SSM; 47% would vote no; 5% are undecided. margin of error is ~+mn~3.6%


Democrats favor SSM 63% to 32%


Republicans oppose SSM 70% to 24%


Independents favor SSM 55% to 42%


Voters aged 18 to 39 favor SSM 55% to 41%


Voters aged 40 to 64 favor SSM 49% to 46%


Voters 65 or older oppose SSM 58% to 34%


Protestants oppose SSM 63% to 31%. Unfortunately, this number hides more than it reveals. Within Protestantism there are conservative, mainline, liberal and progressive wings, who have very different levels of support for SSM: the vase majority of fundamentalist, evangelical and other conservative Protestants are strongly opposed to SSM; progressives are strongly in favor.


Roman Catholics oppose SSM 53% to 45%


Voters of other faiths favor SSM 63% to 33%


Voters who have no religious affiliation favor SSM 81% to 17%

The most remarkable result, in our opinion, was that:


Voters who personally know or work with a gay or lesbian favor SSM 56% to 41%


Other voters oppose SSM 66% to 27%.

This last factor has been reported in many previous polls in different areas of the country. The most effective method of changing an individual's opinion from being opposed to being in favor of equal rights for gays and lesbians is to actually have them befriend a homosexual. Once gays and lesbians are treated as individuals, and not perceived as some insidious invisible mob with a secret agenda, then people become much more sympathetic.

The Public Policy Institute of California conducted a poll in 2009-MAR. Results were:


45% in favor of marriage equity;


49% opposed to marriage equity;


6% undecided. 2

Supreme Court of California's ruling on Proposition 8:

The Court's 185 page decision was delivered on Tuesday morning, 2009-MAY-26. 5

As expected by most observers -- both those for and against SSM -- the Supreme Court upheld the constitutionality of Proposition 8. That initiative prohibits any SSM licenses and registrations in the state from election day in 2008 onwards.

The court ruled that Prop. 8 is merely a minor amendment to the state Constitution, and not a major revision. A minor constitutional amendment can be made by a simple majority vote of the voters via a proposition. A major revision requires involvement of the legislature.

The court explained that a revision to the constitution must involve a "wholesale or fundamental alteration of the constitutional structure." It must involve a major effect: "... on the basic governmental plan or framework embodied in the preexisting provisions of the California Constitution." 6 They determined that an initiative like Proposition 8 which denies a defined group the right to marry simply does not rise to the level of a constitutional revision; it is thus only an amendment. No legislative action had to be taken. A simple 50% positive vote by the voters plus one vote is sufficient to implement Prop. 8.

The court did point out that same-sex couples still have the right to "choose one?s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage." 7 However, whatever that state-recognized same-sex relationship is called, it cannot be called a marriage. In short, Proposition 8 does not deny same-sex couples the right to have their relationship and families protected under law. It does restrict the use of the term "marriage" to opposite-sex couples, while forcing same-sex couples to accept a term like "domestic partnership," or "civil union."

It is important to note that an expert panel in New Jersey studied whether civil unions gave same-sex couples the same rights and benefits as marriage does to opposite-sex couples. Their recommendation was unanimous! They concluded that same-sex couples cannot achieve equality with opposite-sex couples if the former's legal status is limited to being civil unionized. The panel recommended that New Jersey follow the lead of other states in the Northeast by allowing all loving, committed couples to marry, irrespective of their gender.

After an 18 month investigation, the New Jersey panel issued a 79 page report in 2008-DEC, stating that:

"The Commission finds that the separate categorization established by the Civil Union Act invites and encourages unequal treatment of same-sex couples and their children."

The California court concluded that, of all the rights guaranteed to same-sex and opposite-sex couples:

"... it is only the designation of marriage ? albeit significant ? that has been removed by this initiative measure.

"Taking into consideration the actual limited effect of Proposition 8 upon the preexisting state constitutional right of privacy and due process and upon the guarantee of equal protection of the laws, and after comparing this initiative measure to the many other constitutional changes that have been reviewed and evaluated in numerous prior decisions of this court, we conclude Proposition 8 constitutes a constitutional amendment rather than a constitutional revision." 8

Court justices and judges are often criticized by social and religious conservatives for exceeding their authority and behaving as activists -- following their own opinions and feelings instead of conforming to the dictates of the constitution and of legal precedents. They cannot be accused of activism in this case. They followed the constitution and precedents precisely.

Also as expected, since Prop. 8 did not contain a retroactive clause, the court also ruled that the approximately 18,000 same-sex couples who were legally married between 2008-MAR and 2008-NOV will still be considered married. Many social and religious conservatives had hoped that the court would order the couples to be forcibly divorced against their will.

Editor's comments: bias alert:

By defining a marriage amendment as minor amendment, the Supreme Court of California has negatively impacted same-sex couple's human rights.

Back in 1967, Chief Justice Earl Warren of the U.S. Supreme Court wrote the majority opinion in Loving v. Virginia. This was the ruling that terminated miscegenation laws in various states and made inter-racial marriage legal across the U.S. He wrote:

"Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival . ... The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."

One might replace references to race with references to sexual orientation, and see how a major human right has been crushed.

However, the Supreme Court of California had no choice but to declare Proposition 8 constitutional. The state's constitution does give the public the authority to define any group that it does not like, and strip away their right to marry. Further, future Propositions can be envisioned that strip away other state-granted human rights at any time from any group that triggers the displeasure of the majority of voters. Constitutions are supposed to act as a guarantor of human rights and as a check on the power of the legislature, executive and public. That is not present in California. In short, the California Constitution permits the "tyrrany of the majority" also known as "mob rule."

The messages are clear:


To all loving, committed same-sex couples in the U.S.: If SSM becomes available in your state, you may need to drop everything, get your marriage license with all possible speed, and arrange to be married ASAP. There is no telling whether an opportunity to marry will be terminated at any time. In Iowa during 2007-AUG, only one same-sex couple was able to marry in the short interval between the legalization of SSM by a judge's ruling, and the staying of that decision by the same judge. In Hawaii during 1996-DEC, there were only a matter of hours between the court decision and the staying of that ruling via an injunction. No couples were able to marry in that case.


To all members of minorities in California: Consider moving to another state as soon as is convenient. If a Proposition is passed by the voters to eliminate the right of same-sex couples to marry, then any minority is vulnerable to the loss of the same right. In fact, many of their fundamental human rights in California are susceptible to being wiped out on any election day unless specifically guaranteed by the U.S. Constitution. Since everyone in California is a member of at least one minority, following this advice could evacuate the entire state. An interesting thought. Atheists and a few other religious minorities are at particular risk, because of the current levels of religious animosity directed at them. 

Proposals to repeal Proposition 8:

Many people feel that an alteration to the state Constitution to:


Identify a group of adults by race, sexual orientation, gender, religion, or any other similar parameter, and


Prohibit them from marrying in the state

is a major revision to the constitution. But apparently the laws that cover changes to the California Constitution allow almost complete freedom for a majority of California voters to alter the constitution in any way that they see fit.

The next logical move is for the pro-equality and civil rights movements in the state to initiate a new proposition that repeals Prop. 8. The next opportunities occur on election day on either 2010-NOV or 2012-NOV . Since the court ruled that 50.00% of the voters plus one was able to pass Prop. 8, then the same percentage can implement a new proposition to repeal Prop. 8. If the new Proposition is passed, this would undoubtedly be countered by religious and social conservatives, including the Mormon and Roman Catholic churches as major players, by attempting to reinstate Prop 8 at the following election day two years later.

Arguments in favor of trying to repeal Prop. 8 during 2010-NOV:


There is currently considerable enthusiasm to roll back Prop. 8; it might dissipate if they wait until 2012.


By 2012-NOV, marriage equity will be in place in Connecticut, Maine, Massachusetts, New Hampshire, and perhaps New York and New Jersey. That momentum could carry over into California.


The Democratic candidate for governor at the 2010 election will be a supporter of SSM.

Arguments in favor of 2012-NOV:


It might take three years of effort to change the minds of sufficient voters to repeal Prop. 8.


National trends show a gradually increasing support for SSM. Repeal would be more certain in 2012 than in 2010.


It will take a lot of money to wage a successful campaign. Funding for and against Prop. 8 involved a total of $80 million. With California being the center of the current recession, this amount might be difficult to raise. 2

Brian S. Brown, executive director in National Organization for Marriage, -- a group opposed to marriage equality -- said: "The fact is that the people of California have already spoken. And they don't like being told they were wrong the first time."

Kate Kendell, executive director of the National Center for Lesbian Rights, and executive member of the "No on 8" campaign said: "Usually we measure social change on controversial issues on, at a minimum, years, and more often, generations. On this issue, we're measuring it by days." 3

Gay-positive groups decided to not repeal Prop, 8 with a new Proposition, either in 2010 or 2012, even though by mid 2012 there was very strong public support for such a repeal. The groups decided to pursue a court path to declare Prop. 8 unconstitutional.

References used:

 The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "The Field Poll," Field Research Corporation, 2009-MAR-10, at: This is a PDF file.
  2. Marc Solomon, "2010 or 2012? Take our poll," Equity California newsletter, 2009-MAY-19.
  3. Jesse McKinley, "Group Renews Fight for Same-Sex Marriage in California," New York Times, 2009-MAY-07, at:
  4. Ashley Surdin, "California Supreme Court Upholds Same-Sex Marriage Ban," Washington Post, 2009-MAY-26, at:
  5. The text of the Supreme Court's ruling dated 2009-MAY-26 is at: This is a PDF file.
  6. Ibid, Page 6.
  7. Ibid, Page 7.
  8. Ibid, Page 8.

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Copyright 2009 by Ontario Consultants on Religious Tolerance
Original posting: 2009-MAR-04
Latest update: 2009-MAY-26
Author: B.A. Robinson

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