Marriage Equality Advocates Take on Anti-Marriage Prop. 8 

Popular Prejudice or Fundamental Freedom

On March 4, marriage equality supporters—opponents of Proposition 8—will “march forth” in a candlelight vigil from San Francisco’s Castro District to the steps of the California State Supreme Court for what they are dubbing the “Eve of Justice.” On Thursday the California State Supreme Court will hear arguments for and against the repeal of Proposition 8.

Marriage Barriers

On May 15, 2008, the California State Supreme Court ruled, in a 4:3 decision, that it was unconstitutional to deny same-sex couples the right to marry. They further stated that “strict scrutiny” applied because “the differential treatment at issue impinges upon a same-sex couple’s fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple.” (S147999 California State Supreme Court, Marriage Cases, IN RE). One month later same-sex couples began marrying.

But the tides turned on November 4, 2008. Fifty-two percent of California voters voted to change the constitution to limit marriage by defining it as a union between a man and a woman. Within days, same-sex couples were again denied licenses at the marriage license counter.

Opponents of Proposition 8 immediately filed lawsuits charging that Proposition 8 was a revision, not a simple amendment of the California Constitution, and that it violated the separation of powers doctrine and must be repealed. The lawsuits also sought to clarify the legal status of the eighteen thousand couples who were legally married between June 16 and November 4. (Strauss et al v. Horton, Tyler et al v. State of California et al, and City and County of San Francisco et al v. Horton et al.)

Proposition 8: A constitutional revision or a constitutional amendment?

A revision is defined as a “substantial alteration of the entire constitution, rather than a less extensive change in one or more of its provisions” (Amador Valley Joint Union High School District v. State Board of Equalization, 22 Cal.3d 208). In order for a revision to the constitution to be upheld, it must first be approved by two-thirds of the members of the California Assembly and two-thirds of the members of the California Senate and then it can be placed on the ballot. If Proposition 8 is found to be a “substantial alteration of the entire constitution” than it will be repealed unless two-thirds of both houses of the California legislature vote to retain it and then return it to the people for a second vote.

Proposition 8: Does it violate the Separation of Powers?

Opponents argue that Proposition 8 not only stripped away the constitutional rights of a minority by majority vote, but it rendered the judicial system impotent to protect and defend the rights of a minority group.

The Right of the Voter versus the Right of the Individual

Attorney Jerry Brown also filed a brief to overturn Proposition 8 stating that a ballot initiative cannot trump California’s Declaration of Rights without a compelling justification. In an interview with the San Jose Mercury, Brown said Proposition 8 should be invalidated because it is “inconsistent with the guarantees of individual liberty safeguarded” by the California Constitution. In other words, while voters have a right to vote to amend the constitution, they don’t have the right to use the ballot box to take away other people’s “inalienable rights” as already affirmed by the California State Supreme Court and the California Constitution’s Declaration of Rights.

Amici Briefs

There were forty-four friends of the court briefs submitted to repeal Prop 8 and seventeen to uphold it.
A list can be found at http://www.courtinfo.ca.gov/courts/supreme/highprofile/prop8.htm.

Ambiguously Gay Marriage

Proponents of Proposition 8, lead by Kenneth W. Starr, have filed briefs to nullify the eighteen thousand same-sex marriages. And while it may look like this case only affects the LGBT community, if the California State Supreme Court upholds Proposition 8, it sends a message to the nation that everyone’s civil rights could be up for a majority vote and that would be a chilling precedent indeed. While justice may be delayed, let it not be denied!

Dr. Davina Kotulski is the former director of Marriage Equality USA, a nationally recognized leader, speaker and writer within the marriage equality and LGBT movements and author of Why You Should Give A Damn About Gay Marriage (Advocate Books, 2004). She currently works as a private practice therapist, consultant and coach. Visit her website at www.davinakotulski.com.