Your Prop. 8 Questions Answered

By Traci Grant
|  Friday, May 29, 2009  |  Updated 11:37 AM PDT
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Thousands Rally for Gay Marriage

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Apparently even Abraham Lincoln got in on the debate.

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Gay Marriage Ruling Sure to Disappoint Some

California's Supreme Court on Tuesday will issue a decision on the legality of Prop 8, the constitutional amendment banning gay marriage that voters approved last November. No matter what the court decides, neither side of the debate will be happy.

Gay Marriage Activists Speak Out

Gay marriage supporters rallied in the Bay Area Wednesday before the State Supreme Court's expected hearing on possibly overturning Proposition 8.
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What is Prop. 8?

To know the full story we need a little history lesson that begins with another state proposition. First, we need to take a look back at Proposition 22.

What is Prop. 22?

It was a ballot measure, crafted by opponents of gay marriage and passed by California voters by a 61.4% - 38.6% margin, in 2000. The law prevented the state from recognizing same sex marriages. It was first challenged, not by law but by action.  In February 2004, newly-elected San Francisco Mayor Gavin Newsom allowed 4,000 same sex couples to line up at City Hall and get married. Weeks later, an appeals court halted the weddings and invalidated the marriages. That decision was challenged, eventually leading to the May 2008 California Supreme Court ruling giving gay couples the right to marry.

Now. One more time:  What is Prop 8?

For opponents of same sex marriage, Prop 8 is the answer. As soon as the courts May 2008 ruling was delivered, anti-gay marriage groups vowed to put a stop to the weddings taking place all over the state. They came up with Proposition 8, which defines "marriage" as a union "between a man and a woman." Early Field polls showed that support for Prop. 8 was not very strong, but on election night the measure passed by a narrow margin of 52-48 percent.

What was the legal challenge to Prop 8?

Same sex marriage activists took Proposition 8 straight to court to challenge its validity. Many questioned how fair it was for Prop. 8 to have appeared on the ballot, essentially allowing the rights of a minority group to be decided by a majority. The main argument by those opposing Prop. 8 was that the law wasn't really an "amendment" to the state constitution.  The claim was that it was a "revision."

Huh?

Exactly. Civil Rights groups who backed the argument agreed that it was going to be tough to prove but, lead by the San Francisco City Attorney's office, they attempted to convince the State Supreme Court justices that an amendment was a simple change to the constitution.  But Prop. 8 actually impacted a fundamental right as described by the constitution. As a result, it revised the entire document itself.

So what happened?

It didn't work.

What is the status of gay marriage in California right now?

It is still not legal. The State Supreme Court's decision to uphold Prop. 8 means that the word marriage only pertains to heterosexual couples. Same sex couples are still allowed to have civil unions and domestic partnerships, which many people believe are not equal to marriage. 18,000 couples were wed during the 4 ½-month window between last year's court decision legalizing gay marriage and Prop 8's reversal of that decision. The State Supreme Court justices decided that those marriages are legal and will remain intact.

From the Associated Press:

California's status as a guardian of gay rights slipped this week when its highest court upheld a voter-approved ban on same-sex marriage, even as other states extend the institution to gay couples.

"Are the people of Massachusetts, Connecticut, Iowa, Vermont, Maine and New Hampshire more sexually literate than Californians?" asked the National Sexuality Resource Center, a San Francisco-based think tank, ticking off the states where gays can or soon will be able to wed.

The rhetorical question points to a new reality: California -- home to 14 percent of the nation's same-sex couples and the first to offer gays the spousal rights of marriage without being ordered to by a court -- no longer seems to be on the leading edge of the issue.

But as California gay rights groups launch a campaign to repeal Proposition 8 at the ballot box next year, activists around the country insist the state still matters and can count on support from a movement emboldened by recent successes.

"Certainly California remains very important in this epic struggle just because it's so big and it is in many ways a trendsetter," said Richard Socarides, who served as President Bill Clinton's adviser on gay civil rights. "You can't write it off."

Immediately after the California Supreme Court ruled Tuesday to let Proposition 8 stand, the state's leading gay rights groups vowed to reverse the ban by winning over more conservative voters. Leaders of Equality California and Courage Campaign said they had started canvassing in more conservative parts of the state, working with religious and ethnic groups and otherwise learning from mistakes made during last year's failed campaign to defeat Proposition 8.

Supporters and opponents spent $83 million on last year's Proposition 8, making it the most expensive election on a social issue in the nation's history. The constitutional amendment, which trumped an earlier state Supreme Court decision legalizing same-sex marriage, passed with 52 percent of the vote.

Equality California Executive Director Geoffrey Kors said Wednesday that to qualify another measure for the 2010 ballot, sponsors ideally would submit its language to the secretary of state by the end of September.

Kors estimated that gay marriage supporters would need at least $20 million to win during next year's gubernatorial election, when voter turnout is expected to be lower.

"We need to go door-to-door in their neighborhoods and have conversations with them about why marriage is important," said Marc Solomon, Equality California's marriage director.

Mary Bonauto, civil rights director of Boston-based Gay and Lesbian Advocates and Defenders, noted that if California advocates succeed in getting Proposition 8 reversed it would be an unprecedented milestone: Although 28 other states have constitutional bans on same-sex marriage, none has been challenged with a popular vote.

"The biggest thing California can do is win back marriage at the ballot box," said Bonauto, whose group brought the lawsuit that led to Massachusetts becoming the first state to sanction same-sex marriage. "We have won marriage in courts, we have even now marriage winning in legislatures. To win it with the people would crumble the right-wing's whole house of cards."

The sense that perhaps California was being left behind became evident after Tuesday's court decision was handed down. The lawyers who represented opposing sides in the 2000 Bush v. Gore election challenge announced they had filed a federal lawsuit challenging Proposition 8, a move aimed at getting the U.S. Supreme Court to strike down same-sex marriage bans around the country.

Noting that they occupied different ends of the political spectrum but agreed that withholding marriage from gay couples was discriminatory, Theodore B. Olson and David Boies said they think the high court is ripe to take on the issue.

 "I felt it was very important we present the American people and the courts a unified front and tell the courts and the American people through our presence and our participation this is not about right or left or partisan politics," Olson said. "This is about what we all share as Americans."

A coalition of gay rights groups said Wednesday they thought such a move was premature and they preferred to work though state legislatures and voters to win wedding rights.

"It is wonderful to have support from lawyers of the caliber of Ted Olson and David Boies. That in itself sends a powerful message that the time for change has come," said Shannon Minter, legal director of the National Center for Lesbian Rights.

"That said, we have only one shot at the U.S. Supreme Court, and any attorneys bringing a case that will affect the freedom and legal status of an entire community bear a very heavy responsibility to be certain they have fully considered the consequences," he added.

Even as gay rights activists continue to pursue a state-by-state strategy, they also are pressuring President Barack Obama to fulfill his campaign pledge to work toward repealing the federal Defense of Marriage Act. The 1996 law prevents couples in states that recognize same-sex unions from securing Social Security spousal benefits, filing joint taxes and other federal rights of marriage.

"I don't think it's an either/or," Evan Wolfson, executive director of New York-based Freedom to Marry, said of California's continuing importance to the national debate. "Winning marriage in more states is crucial not only for the families living in those states, but for creating a comfort level that sets the stage for a national resolution."

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