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

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2009 to 2013-JUN: Efforts to overturn Prop. 8
by repeal or lawsuit. Lawsuit wins! Polling data.

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Background:

bullet The California Supreme Court had legalized same-sex marriages (SSMs) on 2008-MAY-14. Lesbians, gays, bisexuals, transsexuals, religious and social liberals, etc. generally approved this move as a positive contribution to civil rights and marriage equality. Religious and social conservatives generally viewed it very negatively as an attack on opposite-sex marriage, a.k.a. "traditional marriage" & "historical marriage."
 
bullet Proposition 8 was very narrowly passed on Election Day in 2008-NOV. It defined marriage as a union of one man and one woman. This modified the California constitution and terminated further SSMs in the state.
 
bullet The California Supreme Court ruled that Prop. 8 is constitutional. No new SSMs can be performed, but legal SSMs contracted between 2008-MAY and NOV are still valid.

bullet A lawsuit was launched in Federal District Court in an attempt to have Proposition 8 declared unconstitutional under the federal Constitution. District Court Vaughn Walker ruled on 2010-AUG-04 that Proposition 8 violated two separate clauses of the 14th Amendment of the U.S. Constitution and was thus unconstitutional.

bullet "Judge mocks God." "Pervert judge; Pervert ruling; TruthUSA.com" Text of signs held by Prop. 8 supporters just following Judge Walker's ruling.

bullet Church sign Church sign by the Wantagh Memorial Congregational Church in Wantagh, NY 11793, commenting on Judge Walker's decision. It belongs to the United Church of Christ denomination. Other church signs have included: "Bigotry wrapped in a prayer is still bigotry," and "We're a marriage equality church!"

bullet

Rally sign Sign carried by attendee at a 2010-Summer National Organization for Marriage rally. It cites Leviticus 20:13 which is rendered in the King James Version as: "If a man lies with a man as one lies with a woman, both of them have done what is detestable. They must be put to death; their blood will be on their own heads." It has variously been interpreted:

  • By religious conservatives as calling for capital punishment for all same-sex sexual activity in ancient Israel, and

  • By religious liberals and secularists as ambiguous, either:
    • Calling for the execution of men engaging in same-sex ritual sex with male prostitutes in Pagan temples, or
    • Banning two men from engaging in sexual activity in a woman's bed.

There are not too many male prostitutes employed in North American temples today .

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Attempts to overturn Proposition 8:

In 2008, Prop. 8's intent was to alter the state Constitution to:

bullet Identify a group of adults by sexual orientation, and
bullet Prohibit them from marrying in the state

Many people felt that this would be a major revision to the constitution that should have required prior legislative approval. 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 almost any way that they see fit. Presumably, if 50.001% of California voters passed just about any Proposition to terminate a basic human rights of any group in society, state courts would also find the Proposition to be constitutional. Scary stuff. Since every citizen is a member of many minorities, nobody's rights are really safe from the "tyranny of the majority" in California.

There were two logical ways to restore marriage access to loving, committed Californian couples:

bullet Launch a new proposition to repeal Prop. 8. This was considered a backup plan in the event that the following path is unsuccessful.

bullet

Challenge the constitutionality of Prop. 8 directly via the federal courts. This was the path taken.

Four individuals, a lesbian couple and a gay couple, launched a lawsuit in federal District Court to obtain the right to marry; they won. Normally, the State of California would have immediately appealed that decision to the U.S. 9th Circuit Court of Appeals. However, the Governor and Attorney General firmly believed that Prop. 8 was unconstitutional and that for them to appeal the decision would be unethical. ProtectMarriage -- the proponents of Prop 8 -- were able to act in the place of the Government. They appealed the decision to a 3 judge panel of U.S. 9th Circuit Court of Appeals, and later to the full Court. They lost both times.

On 2012-AUG-31 they appealed the case to the U.S. Supreme Court (SCOTUS). The high court tentatively accepted the appeal on 2012-DEC-07. Oral arguments were held on 2013-MAR-26. The court issued its ruling on 2013-JUN-26. SCOTUS sidestepped the decision. Rather than determine whether Prop. 8 was unconstitutional or not, they decided that ProtectMarriage had no legal standing to initiate the appeal; they had no right to appeal the case either to the Supreme Court or to the U.S. 9th Circuit Court of Appeals. The District Court's decision stands: Prop. 8 is unconstitutional.

Only one item needed to be cleared up before same-sex couples could marry. The 9th U.S. Circuit Court of Appeals had placed a stay on their ruling that had to be removed. The court originally stated that they would leave their stay in place for at least 25 days, so that ProtectMarriage or the California government could appeal the District Court's decision. There was some speculation that ProtectMarriage would mount an appeal to limit SSM in California to just two counties or just the four defendants. However, on JUN-28, after only two days, the Court of Appeals reversed their decision and terminated the hold on SSMs. Couples started to be married within hours. Some rushed to obtain their marriage licenses out of their strong desire to be married. Others were motivated by a concern that some legal maneouver might materialize and close off access to same-sex marriage without warning.

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Topics covered in this section:

Option 1: Attempting to repeal Proposition 8 with another California citizen initiative:

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Option 2: Perry v. Schwarzenegger (later renamed Hollingsworth v. Perry) lawsuit to challenge the constitutionality of Prop. 8

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Site navigation:

Home page > "Hot" topics > Homosexuality > Couples > California > here

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Copyright © 2009 to 2013 by Ontario Consultants on Religious Tolerance
Original posting: 2009-JUN-22
Latest update: 2013-JUL-12
Author: B.A. Robinson

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