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

Amendment approved for 2008-NOV vote

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Background:

In the year 2000, 61% of Californians passed Proposition 22. It restricted marriage to one man and one woman, and prevented the state from recognizing same-sex marriages (SSM) solemnized in other jurisdictions.

However, the legislature subsequently passed a series bills that gave same-sex couples many of the same state rights as married couples.

Most recently, the Democrats in the legislature passed two bills that legalized same-sex marriage in the state. Both were vetoed by Gov. Arnold Schwarzenegger (R).

Meanwhile, a lawsuit made its way towards the California Supreme Court in an attempt to make same-sex marriages available to all loving, committed couples in California. The court heard oral arguments on 2008-MAR-04. They issued their decision on MAY-14. It did not overturned Proposition 22 of a whim on the part of "activist judges" as has been claimed by some. They declared Prop 22 unconstitutional because it violated two clauses in the state constitution: the equal protection clause and the clause prohibiting sexual discrimination. In cases where a state constitution, legislation and proposition(s) conflict, the constitution always rules.

Constitutional amendment/revision:

Andrew Pugno, chief counsel for the Proposition 22 legal defense fund, said:

"The folks who want to redefine marriage will not give up, and they will continue to push. The only way to protect marriage permanently is to amend the state constitution so that [it] is not subject to the whims of judges." ₁

This is a curious statement for a lawyer to make because he must have been aware that no amendment to the state constitution is permanent. Any amendment passed in 2008 could be repealed by a second amendment two, four, six or more years in the future. All that is needed is a sufficient number of signatures on a second petition. If support for SSM continues to increase at its present rate, it would just be a matter of time before such a repeal would take place. Thus, a constitutional amendment would probably be only a temporary denial of marriage equality.

Geoffrey Kors of Equality California, a gay and lesbian advocacy group involved in the case, said: "This will be one of the -- if not the -- legal landmarks in the struggle for equal rights. It will have a ripple effect not only in this country, but the whole world."

For two years, a pair of conservative Christian groups, had independently proposed competing constitutional amendments to prevent loving, committed same-sex couples in California from marrying.

• ProtectMarriage.com's amendment was written to only ban same-sex marriage. It states simply and unambiguously: "Only marriage between a man and a woman is valid or recognized in California." It is backed by four fundamentalist Christian groups: Focus on the Family, Family Research Council, the Alliance Defense Fund, and Concerned Women for America. More details
• VoteYesMarriage.com would have banned both same-sex marriages and same-sex domestic partnerships. Committed same-sex couples would have been reduced to roommates in the eyes of the law. They would have lost about 400 state benefits that are routinely given to opposite-sex couples. They would not be guaranteed visits to their partners in hospital; their children would lack protections guaranteed to the children of opposite-sex married couples. Their amendment was backed by four extreme fundamentalist Christian groups: Liberty Counsel, the American Family Association, Campaign for Children and Families, and the Traditional Values Coalition.

Each group had gathered signatures during 2006. Both failed to place the amendment on the 2006-NOV ballot. They had until 2008-APR to collect 690,000 signatures in order to have a vote held on the 2008-NOV ballot. With almost 16 million registered voters, there are lots of potential signers.

A poll by ProtectMarriage.com showed that the VoteYesMarriage amendment would have been rejected by the voters. A poll by the VoteYesMarriage group had the opposite result.

VoteYesMarriage terminated their petition drive. A statement on the VoteYesMarriage.com campaign now says: "In defense of marriage licenses between a man and a woman, we urge you to vote for the California Marriage Protection Act, which is being led by the ProtectMarriage.com campaign." ₂

Protect Marriage.com spent $1.8 million on signature-gathering campaign through 2008-MAR-30. About $1 million of the total came from the National Organization for Marriage and Fieldstead and Co. The latter is the philanthropic organization of Fieldstead Ahmanson, Jr. who is sometimes referred to as the "paymaster of the political right." ₃  Both sides are expected to spend $10 to $15 million on their campaigns leading up to the 2008-NOV ballot.

On 2008-JUN-02, Debra Bowen, the California Secretary of State, certified the "California Marriage Protection Act" for inclusion on the November ballot as Proposition 8.

When the Supreme Court ruling was made pubic, James Dobson, chairman of the fundamentalist Christian group Focus on the Family, described the decision as an "outrage." He said: "It will be up to the people of California to preserve traditional marriage by passing a constitutional amendment. ... Only then can they protect themselves from this latest example of judicial tyranny." The phrase "preserve traditional marriage" is a commonly used to mean denying same-sex couples the right to marry. Also at that time, Governor Arnold Schwarzenegger (R)issued a statement saying that he respected the court's decision and "... will not support an amendment to the Constitution that would overturn this state Supreme Court ruling." ₄ This is a moral stance by the governor; he has no powers to effect the vote.

As written, the revision to the constitution is most unusual -- perhaps unprecedented. Most amendments extend human rights. This one would identify a specific group -- loving, committed same-sex couples -- and deny them fundamental rights. Beth Hillman, a professor at the University of California Hastings College of the Law, said that the situation is unprecedented. No state has ever passed a constitutional amendment to ban same-sex marriage after the court has granted same-sex marriage. She said:

In general, constitutional amendments are not used to take away rights but to extend civil rights. Plenty of initiatives have changed rights that individuals have, but none has been this specific in eliminating them"

The two sides were both hopeful of winning:

• Andrew Pugno, Project Marriage.com's legal adviser, said:

  "One major theme will be that this is an opportunity for the voters to speak out against the judicial activism that occurred here, with the court going beyond its role as an interpreter of law to create new laws. I think the fact that the court has already ruled on this increases the likelihood of the marriage amendment passing. In the absence of a court ruling, or if the court had upheld traditional marriage, it would be less clear that we needed this amendment. ... Folks who support traditional marriage could have voted no, thinking it was unnecessary, but now they know they must vote yes or the court decision will be allowed to stand."

• Kate Kendall, the executive director of the National Center for Lesbian Rights said:

  "Having won, we have a much better shot at defeating the amendment. For the next six months, everyone in California will have the experience of knowing gay people who get married. Just that day-to-day interacting is going to propel us towards defeating this amendment. ... If we win by even two or three percentage points, this will be the last gasp of ardent anti-gay forces in this state." ₃

References used:

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

1. Devon William, "Marriage on trial before the California Supreme Court," CitizenLink.com, 2008-MAR-03, at: http://www.citizenlink.org/
2. "Calif. amend. qualifies; suit filed in N.Y.," Baptist Press, 2008-JUN-03, at: http://www.bpnews.net/
3. Sue Rochman, "Summer of love, winter of struggle," The Advocate, 2008-JUL-01, Page 36.
4. Lisa Leff, "California's top court legalizes gay marriage," Associated Press, 2008-MAY-14, at: http://news.yahoo.com/s/

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Copyright © 2008 by Ontario Consultants on Religious Tolerance
Latest update and review: 2008-NOV-05
Author: B.A. Robinson

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