California's Proposition 8 (Same-Sex Marriage)
Updated: 11 Jan 2010
Proposition 8 was a 2008 California ballot measure that outlawed same-sex marriage. It continues to be one of the central battlefields in the fight over same-sex marriage in the United States.
On May 15, 2008, the Supreme Court of California voted 4-to-3 that a state law banning same-sex marriage constituted illegal discrimination because domestic partnerships were not a good enough substitute. In its decision, the court wrote that whatever term is used by the state must be granted to all couples who meet its requirements, whatever their gender. The court left open the possibility that another term could denote state-sanctioned unions so long as that term was used across the board.
Opponents quickly organized, and launched the Proposition 8 initiative campaign, asking voters to ban same-sex marriages. After an expensive and hard-fought campaign, the measure passed on Nov. 4, 2008, with 52 percent of the vote. (Florida and Arizona also passed bans at the same time.)
Groups who had fought Proposition 8 immediately filed suit to block it. On May 26, 2009 the state Supreme Court upheld the voter-approved ban but also decided that the estimated 18,000 gay couples who tied the knot before the law took effect will stay wed.
Efforts to overturn Proposition 8 with another ballot measure in California face uncertain prospects, with most major groups having decided to wait until at least 2012 to go back to the voters.
Meanwhile, proponents of same-sex marriage are challenging Proposition 8 in federal court, in a case that is being anxiously watched by gay rights groups and supporters of traditional marriage nationwide. The challenge is being led in court by David Boies and Theodore B. Olson, who represented opposite sides arguing the fate of the 2000 election.
A Basic Civil Right
After a nearly three-week trial in January, and a lengthy hiatus while lawyers fought over documents, closing arguments are scheduled for Wednesday in a lawsuit challenging the constitutionality of Proposition 8, California’s ban on same-sex marriage.
No one expects the ruling from Judge Vaughn Walker in Federal District Court to be the last word. The United States Court of Appeals for the Ninth Circuit, in San Francisco, will have its say, and so, eventually, may the Supreme Court.
The testimony made abundantly clear that excluding same-sex couples from marriage exacts a grievous toll on gay people and their families. Domestic partnerships are a woefully inadequate substitute.
On the witness stand, the plaintiffs described the pain and stigma of having their relationships relegated by the state to a lesser category that fails to convey the love and commitment inherent in marriage. “My state is supposed to protect me. It’s not supposed to discriminate against me,” said Paul Katami, one of the plaintiffs.
Defenders of Proposition 8 produced no evidence to back up their claim that marriage between same-sex couples would hurt heterosexual marriage. “I don’t know. I don’t know,” the defense attorney, Charles Cooper, said when asked for an explanation by the judge at a pretrial hearing.
The defense called only two witnesses. The first, Kenneth Miller, a professor at Claremont McKenna College, argued that gay people are a powerful political force, which was meant to support the claim that there is no need for enhanced judicial protection. He ended up admitting that gay men and lesbians suffer discrimination.
The other witness, David Blankenhorn, the president of the Institute for American Values, argued that marriage is being weakened by rising divorce rates and more unmarried people having children, but he could not convincingly explain what the genders of married couples had to do with that.
Upon questioning, he acknowledged that marriage is a “public good” that would benefit same-sex couples and their children, and that to allow same-sex marriage “would be a victory for the worthy ideas of tolerance and inclusion.” The net result was to reinforce the sense that Proposition 8 was driven by animus rather than any evidence of concrete harm to heterosexual marriages or society at large.
It’s not possible to know whether the final ruling in this case will broadly confront the overarching denial of equal protection and due process created by prohibiting one segment of society from entering into marriage. The Supreme Court has, in different cases, called marriage “essential to the orderly pursuit of happiness by free men” and a “basic civil right.”
The result, even if a win for gay couples, could be a limited ruling confined to the situation in California, where the state’s highest court granted the freedom to marry and voters later repealed it following an ugly campaign spearheaded by antigay religious interests.
But there are actions that can be taken now. States like New York should not put off acting on legislation to legalize same-sex marriage. Last week, President Obama extended a modest package of benefits — including day care and relocation allowances — to all partners of federal employees. Congress has a duty to extend to same-sex partners the rest of the benefits that are enjoyed by federal workers whose spouses are of a different sex. It also needs to repeal the 1996 law that defines marriage as a union between a man and a woman.