Prop 8 challenged in court, questions abound

on November 6, 2008

By HENRY JONES and SAMSON REINY

Nov. 6–The passage of Proposition 8 has set off statewide legal confusion as same-sex marriage advocates filed petitions before the California Supreme Court yesterday, calling for the suspension of the gay marriage ban until the court decides if the amendment is unconstitutional.

Californians voted on Tuesday by a 52 to 48 percent margin in favor of the ballot measure, which amended the state’s constitution to define marriage as between a man and a woman. As a result, gay marriage ceremonies were halted yesterday throughout the state.

By Wednesday’s end, a total of five separate petitions had been submitted. The city attorneys from San Francisco, Santa Clara, and Los Angeles all filed their own, as did a gay couple in Los Angeles; another came from a coalition of the ACLU, Lamdba Legal, and the National Center for Lesbian Rights (NCLR) on behalf of six same-sex couples.

All petitions made essentially the same argument: that Prop 8 removes a fundamental civil right from a single minority group, a change the petitioners consider serious enough to be a revision of the state constitution and not simply an amendment. A revision would require a 2/3 vote in California’s State Legislature before being brought to the public’s vote as a proposition.

“Instead of requiring California to treat all people equally, Prop 8, for the first time, mandates that the government must discriminate against a particular group,” said Shannon Price Minter, Legal Director for NCLR, at a press conference this afternoon.

“It’s very distressing that this amendment is attempting to take something away,” Joan Hollinger, a leading scholar on family law and professor at Boalt School of Law, said in an interview today. “In no other circumstances that I can remember has a right been taken away from a people who already have it.”
Lawyers at Lambda Legal say they don’t expect a response from the Supreme Court for another week or two. In the meantime, many of the implications of Proposition 8 are still unknown.

No one is sure, for instance, what will happen to the 18,000 same-sex marriages that have been performed in California since the state’s Supreme Court ruling in May of this year that marriage was a “fundamental right” for all Californians.

On Wednesday, California Attorney General Jerry Brown said he expects that Prop 8 would not apply retroactively, but at this point there is no definitive answer to that question. Also uncertain is whether California would recognize same-sex marriages performed in other states—a requirement specified within May’s Supreme Court ruling. As Hollinger said when initially contacted, preempting additional questions about the implications of Prop 8, “The answers to your questions are, ‘We don’t know, we don’t know, we don’t know.'”

Gay leaders in California have argued in recent years that the right to marry would be a symbolic achievement, a sign of fuller acceptance into mainstream culture. As it is, California offers same-sex couples domestic partnership, which carry virtually all of the same rights and responsibilities as conventional marriages (Unions between same-sex couples are not recognized at the federal level, whether their state allows them to marry or not. At the moment, only Connecticut and Massachusetts allow same-sex marriage).

Elsewhere in the country, similar propositions restricting marriage to a man and a woman passed Nov. 4 in Arizona and in Florida; neither state is experiencing a similar legal backlash, though in those states, unlike California, same-sex marriage had not previously been legal. Meanwhile, in Arkansas, voters approved an initiative which prevents unmarried couples from adopting, effectively excluding any same-sex couples.
For an issue of this magnitude, Hollinger remarked, many people are too busy to understand the consequences of their actions on a ballot. “They don’t know how radically they can change people’s lives,” she said.

Though it was not clear today whether supporters of Prop 8 plan any legal action in response to the recent petitions, it was clear that they are watching the situation closely. Andrew Pugno, the general gounsel for ProtectMarriage.com, one of the leading proponents of Prop 8, wrote on his website Wednesday that he and his fellow supporters “will vigorously defend the People’s decision against this unfortunate challenge by groups who, having lost in the court of public opinion, now turn to courts of law to pursue their agenda.”

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1 Comment

  1. Paula on November 7, 2008 at 3:58 am

    TO ALL WHO OPPOSE GAY MARRIAGE:

    I think you’re good people, like me. I pay my taxes that support my schools and religious institutions so they can give back to the community. I don’t hurt anyone and only try to help. I oppose people who try to infringe on religious freedoms, and I don’t seek to infringe upon what “marriage” means to you. I appreciate that most of you DO approve of ‘domestic partnerships’ and ‘civil unions’ for gay people, but please listen to why that doesn’t work.

    The federal government gives married people about 1000 rights. The state gives them about 400 additional rights. The reason the government is involved in marriage at all is to promote and protect stable, happy families as basic units of society. Obviously marriage is not solely for procreation, as we do not remove that right from you if you are infertile, elderly, or choose not to have children. When you marry, you are automatically entitled to those 1400 rights, including the right to visit a spouse in the hospital, be added to your spouse’s insurance policies, acquire property with your spouse and automatically inherit it if your spouse dies, and many more. These 1400 rights are not simply and easily written up in a single civil document, nor always enforceable; for instance, a person under a state’s domestic partnership can’t force the IRS to give him the tax breaks afforded to married couples. It is extremely complex and doesn’t always work; I am aware of gay people whose partners died and the deceased’s hostile family successfully asserted their ownership of everything in spite of the contract, leaving the survivor destitute. Imagine children being involved, and a deceased partner’s hostile family takes your children from you because your civil contract didn’t stand up in court proving you were next of kin! In Arkansas, the majority just voted to prohibit unmarried people from adopting, meaning a gay person can’t even adopt their partner’s children to ensure that if their partner dies the children will remain with the surviving parent they love!

    ‘Civil unions’ and ‘domestic partnerships’ permit OSTENSIBLY most of the 400 state-afforded rights of married couples, but NONE of the 1000 federal ones, and I can tell you from personal experience that the state ones are NOT equal. Just one example is that to get on my partner’s insurance policy, we had to provide our certificate of domestic partnership, copies of financial records proving we had co-mingled finances and lived in the same home for at least two years, and more. If I died, my partner would have to wait at least two years to add her new partner to the policy to prove the relationship was ‘real’. Married people don’t even need to provide a copy of a marriage license, and if their spouse died today, they could add a new spouse tomorrow. This is only one example out of MANY.

    Other rights are specific to helping children of married people, including ensuring automatic inheritance rights, the right of a non-blood related parent to pick up a sick child from school, alimony and child support to help with their care in the event of divorce, and many more. No matter the makeup of the family or how it comes to be — be it traditional nuclear, or grandparents raising their grandchild, or a blended family resulting from divorced people remarrying, or single parents, or adoptive parents, or childless couples, or gay couples — ALL of these people deserve the same rights so they have the best chances of happiness and contribution to society.

    What I would like to see the FEDERAL government do is create one proto-marriage type of relationship (‘civil union’?) that applies equally to all people who want it, including granting them all 1400 of the rights and responsibilities that “married” people currently enjoy, and then simply leave the word “marriage” for religiously-inclined people who want to further consecrate their relationship according to their religions. I think that is what the MAJORITY of us all want. Unfortunately, the federal government is currently leaving the issue to states to decide, so we are stuck wrestling for the one word that currently encompasses all 1400 of those rights, and that word is “marriage”. Granting the existing rights encompassed by one word to a minority is a lot easier than changing 1400 laws to encompass them. That’s really all there is to it, see?

    I understand many of you are afraid that legalizing gay marriage will lead to your children being forced to learn in school that homosexuality is “normal”. I will be the first to agree with you that homosexuality is NOT “normal” – the parts don’t fit and we can’t make babies. But consider that in one out of every 100 live births, a child is born with ambiguous genitalia (intersexed). If God creates 1% of babies that way, why do we then do surgery to “correct” them to one sex or the other and make them “normal”? God made me abnormal too – I’m among the small percentage of people whose wiring is crossed so I’m attracted to my own sex. My abnormality doesn’t lead me to hurt anyone. The worst law I’ve ever broken is the speed limit. Learning that homosexuals exist isn’t going to turn any child homosexual, but it will help the small percentage born with this abnormality to feel less alone. That’s really the worst that could happen.

    As for the slippery slope arguments that legalizing gay marriage will automatically lead to legalizing polygamy or incestuous marriages, those forms of marriage existed throughout most of recorded history but are too impractical or undesirable for the vast majority of Americans to even consider. As for legalizing gay marriage leading to legalizing people marrying pets or children, these can’t even give informed consent. Please stay off the slippery slope; the ONLY topic we’re asking you to agree on is legalizing gay marriage.

    We gay people and our families are being hurt by laws as they stand, and all we are asking for is the concession that the word “marriage” include us so we may enjoy its rights – and responsibilities. I will leave you with the words of Mildred Loving, who wrote this forty years after her 1967 legal case struck down laws barring interracial marriage:

    “Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the ‘wrong kind of person’ for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry.”

    Peace.



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