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social sciences

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Proposition 8 (California)  
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Even as the supporters of Proposition 8 were celebrating their victory at the polls, opponents announced that they were filing suit to declare Proposition 8 invalid. On November 19, the California Supreme Court accepted three lawsuits challenging Proposition 8 and consolidated them into one, Strauss v. Horton.

One of the suits argued that Proposition 8 should be declared invalid because it improperly attempted to undo the state constitution's core commitment to equality and deprives the courts of their essential role of protecting the rights of minorities.

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According to this suit, the California constitution makes clear that a major change in the roles played by the different branches of government cannot be made by a simple majority vote through the initiative process, but must first go through the state legislature. Changes to the underlying principles of the constitution must be approved by two-thirds of both houses of the legislature before going to voters. Since this procedure was not followed by the proponents of Proposition 8, it should be declared invalid, the suit urged.

Other lawsuits were filed by the City Attorney of the City of San Francisco (joined by his counterparts in the City of Los Angeles, the County of Los Angeles, and Santa Clara) and by Robin Tyler and Diane Olson. The suit by the city attorneys made a similar argument to that of the gay rights organizations, that Proposition 8 attempted to revise rather than amend the constitution.

The suit filed by Tyler and Olson, who were among the first couples to be married after the ruling by the California Supreme Court in May, argued that Proposition 8 introduced a contradiction into the California State Constitution because it violates the equal protection clause.

Another suit was filed by several civil rights organizations, including the Asian Pacific American Legal Center, the California State Conference of the National Association for the Advancement of Colored People, the NAACP Legal Defense and Educational Fund, the Equal Justice Society, and the Mexican American Legal Defense and Educational Fund. This suit emphasized the danger that all minorities would face if the equal protection clause is subject to weakening by initiatives passed by a mere majority.

Still another suit was filed by feminist organizations.

In the aftermath of the election, it was not clear how the passage of Proposition 8 affected the legal status of the 18,000 same-sex marriages performed between June 17 and November 4, 2008. The Attorney General of California, Jerry Brown, issued an opinion that the marriages are valid and must continue to be honored by the state of California. However, this opinion was challenged by the supporters of Proposition 8, who pointed out that the language of the proposition clearly stated that California would "recognize" only marriages between a man and a woman.

On the basis of the questions asked during oral arguments in March 2009, many observers predicted that the Court would uphold Proposition 8, but that it would not invalidate the same-sex marriages performed between June 17, 2008 and the passage of Proposition 8 in November 2008.

That, in fact, was the decision that the California Supreme Court handed down on May 26, 2009. In a 6-1 decision, written by Chief Justice George, the Court upheld the ban on same-sex marriage, while also narrowing the issue to a dispute about a mere word. The ruling rejected all the arguments put forward by those challenging Proposition 8.

The Court emphasized that the state, through the domestic partnership law, gives gay and lesbian couples the ability 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."

Asserting the Court's continuing commitment to subject laws affecting sexual orientation to "strict scrutiny," the decision characterized Proposition 8 as merely "carving out a narrow and limited exception" to the state's protection of same-sex couples, reserving the official designation of the term 'marriage' for the union of opposite-sex couples as a matter of state constitutional law."

Whereas in the earlier ruling, the Court had emphasized the significance of the word marriage, in this ruling the Court minimized its importance, in effect reducing the dispute to a matter of vocabulary.

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