Written by: Tracy Frazier
Researched by: Casey King
Edited by: Adam Gottlieb
Managing Editor: Mary Anne Nash

In the midst of the excitement and revelry surrounding the election of our 44^th president, the success of California’s Proposition 8 was easily lost in the commotion. However, for many, the passage of Proposition 8 damped their excitement over this otherwise historic election. Proposition 8 defines marriage as exclusively between one man and one woman, and was spurred by conservative reaction to a recent California Supreme Court decision. In the May 2008 case In re Marriage Cases, the California Supreme Court struck down the state’s ban on gay marriage in a 4-3 ruling.

California, like many states, has a long and tumultuous history with gay marriage. In 2005, the state legislature passed the Religious Freedom and Civil Marriage Protection Act. This act would have ensured equal treatment under the law by making marriage a gender-neutral contract, thus allowing same-sex couples to marry in California. Governor Schwarzenegger quickly vetoed the bill. The legislature passed the bill again in 2007, this time by an even wider margin. Governor Schwarzenegger vetoed the bill a second time. This time he declared that the California Supreme Court should weigh in, and that he would respect the court’s decision.

The judges in In re Marriages concluded that allowing opposite-sex couples to marry, while only allowing same-sex couples domestic partnerships, improperly infringed on homosexuals’ constitutional right to marry and to the equal protection of the law. In an opinion authored by Chief Justice Ronald George, the court stated that marriage was a basic, fundamental right, guaranteed to all Californians.

California was not the first state to protect gay marriage through a state supreme court decision-Massachusetts has previously done so, and, in October, Connecticut followed suit. Both interpreted their state constitution as providing for equal protection, thus prohibiting the state from withholding a constitutionally protected right from a group of citizens.

A Liberal Dose of Conservatism

After In re Marriages, a group of Californians working under the name Protect Marriage labored diligently to get Proposition 8 on the November ballot. Groups on both sides of the issue raised unprecedented amounts of money in support of their stance, totaling around $35 million on each side.

The wording of the initiative tells voters that Proposition 8 restores the definition of marriage to exclude same-sex couples, while allowing them all of the rights they could enjoy under a civil union. Many supporters warned voters that, without the ban, public school children would be indoctrinated into accepting gay marriage against their parents’ wishes, churches would be sanctioned for not performing same-sex weddings, and the institution of marriage would crumble. House Speaker Nancy Pelosi believes that statements like these misled many voters and caused many to vote for the measure who may not have voted for it otherwise.

On the presidential front, the Obama-Biden ticket emphatically supported equality for gays and lesbians. In the Vice-Presidential debate, Joe Biden stated that “there should be no civil rights distinction, none whatsoever, between a committed gay couple and a committed heterosexual couple.” Although Obama made his stance against the proposition known, his popularity might actually have been a driving force behind the passage-Obama brought an unprecedented amount of African Americans to the polls. According to CNN, African Americans voted against marriage equality by a wide margin, 69% to 31%.

Another issue arises for those same-sex couples who were recently wed in California-will their marriage contracts be honored? Attorney General Jerry Brown stated that he would defend both the legal challenges and “the marriages contracted during the time that same-sex marriage was the law in California.”

Every Action Has an Equal But Opposite Reaction

The news of the result elicited emotional reactions from both sides. Pro-Proposition 8 groups celebrated, while many in the gay and lesbian communities rallied and marched in protest. The day after the election, six same-sex couples and the group Lambda Legal filed suit directly with the California Supreme Court. The plaintiffs, who were not able to marry before the measure passed, sought injunctions that would immediately impede enforcement of Proposition 8. They argue that they are no longer afforded equal protection under the law. Historically, suits of this nature have not been successful. The plaintiffs in these suits were careful to avoid any federal constitutional claim, fearing that should the issue reach the United States Supreme Court they could potentially extinguish the chance of any state allowing same-sex marriage if the court did not rule in their favor.

Similarly, the American Civil Liberties Union (ACLU) responded promptly, also filing a petition straight to the California Supreme Court. The petition asked for immediate injunctive relief against enforcement of Proposition 8. If granted, an injunction would mean that the state couldn’t enforce the measure. The ACLU argues that the initiative process was improperly used in an attempt to undo the constitution’s core commitment to equality for everyone by eliminating a fundamental right from a single group–lesbian and gay Californians.

In fact, they argue that the proposition should never have been on the ballot. Why? In California, voters are only allowed to make minor revisions to the constitution, not amend it. Any major revision must be passed by the state legislature or by a constitutional convention. Proposition 8 was a ballot initiative, and the California Constitution states that any measure that would change the underlying principles of the constitution must be approved by the legislature before being submitted to voters.

Proposition 8 proponents contend that this lawsuit is frivolous. The conservative group Liberty Counsel quickly responded by filing a motion to intervene, arguing that the right to amend California’s Constitution is granted by the people to the government and therefore they reserve the right to amend the constitution. They go on to note that the Supreme Court has repeatedly acknowledged the reserved power of the people to use the initiative process to amend the Constitution, and point to a similar case in Oregon. The group was not allowed to participate in In re Marriages, as the court deemed that their rights were not at stake. They now argue that they have the right to participate in a legal battle over a ballot measure that they helped pass.

It Seems the Year of Change Comes With an Uncertain Future

Bestselling political author Glenn Greenwald has suggested in his blog that democrats in Washington should act quickly and promptly to respond to this injustice. However, he believes that action is unlikely because of the small number of those affected, and the controversial nature of the topic. An editorial opinion in the Washington Post on November 8 suggests that a good first step would be a measure to allow the federal government to extend the same benefits to couples in civil unions, domestic partnerships, or marriages, whether they are gay or heterosexual. Greenwald cites to this article in support of his proposal. However, he recognizes that it would be unwise for the new administration to make this the first issue they address, as the economy is of more immediate importance.

Pro-Proposition 8 groups assert that they are creating a strong legal defense of the measure, but have yet to announce their legal strategy. In the meantime, they pledge to defend the result of the election and stand in solidarity with those who voted for the proposition.

After winning the first battle, the backers of Proposition 8 now have to continue their fight up through the court system. For same-sex couples seeking marriage in California, the recently filed petitions and support from the new democratic administration provide hope. Although the moral war over gay marriage in California has only just begun, one thing is certain: the people fighting on either side of this issue are not about to throw in the towel-or the garter belt-any time soon.