Text of the Amendment:
The California Marriage Amendment, inserted immediately following the state's equal protection clause, reads as follows:
Only marriage between a man and a woman is valid or recognized in California.
Attorney General's Summary of the Amendment:
The amendment was described on the ballot as follows:
Prop 8 - Changes California Constitution to eliminate right of same-sex couples to marry. Provides that only a marriage between a man and a woman is valid or recognized in California. Fiscal Impact: Over the next few years, potential revenue loss, mainly sales taxes, totaling in the several tens of millions of dollars, to state and local governments. In the long run, likely little fiscal impact to state and local governments.
Impact of the Proposed Amendment:
The amendment overturned a May 2008 California Supreme Court ruling which granted equal marriage rights to same-sex couples.
California State Lawsuit Against Proposition 8:
In May 2009, the California Supreme Court upheld Proposition 8 as consistent with the California State Constitution, but also held that same-sex marriages performed prior to the passage of Proposition 8 would remain valid.
Federal Lawsuit Against Proposition 8:
A U.S. federal court in San Francisco will hear a constitutional challenge to Proposition 8 in January 2010.
The plaintiffs in the suit are represented jointly by Theodore Olsen and David Boies--the attorneys who represented George W. Bush and Al Gore, respectively, in Bush v. Gore (2000). Olsen, who later served as Solicitor-General under the Bush administration, has surprised many with his support for same-sex marriage, as he had previously been on the shortlist to succeed Chief Justice Rehnquist and Justice O'Connor on the U.S. Supreme Court.
The plaintiffs in the suit are represented jointly by Theodore Olsen and David Boies--the attorneys who represented George W. Bush and Al Gore, respectively, in Bush v. Gore (2000). Olsen, who later served as Solicitor-General under the Bush administration, has surprised many with his support for same-sex marriage, as he had previously been on the shortlist to succeed Chief Justice Rehnquist and Justice O'Connor on the U.S. Supreme Court.
Federal Constitutionality of the Proposed Amendment:
Because the amendment challenges the validity of marriages performed in other states, it would appear to contradict the "full faith and credit" clause within Article IV of the U.S. Constitution, which requires states to recognize marriages performed in other states. In practice, however, federal courts have avoided enforcing Article IV in cases of same-sex marriage.
The amendment would also appear to contradict the Fourteenth Amendment's equal protection clause, but again, federal courts have declined to enforce this clause in cases pertaining to same-sex marriage.
The amendment would also appear to contradict the Fourteenth Amendment's equal protection clause, but again, federal courts have declined to enforce this clause in cases pertaining to same-sex marriage.
How the Amendment Got on the Ballot:
Supporters of the amendment felt that Proposition 22, a same-sex marriage ban passed in 2000, was too weak, as (unlike a constitutional amendment) Prop 22 could have been overturned by the California Supreme Court if it was found to violate the state's equal protection clause.
Prop 8 supporters needed 694,354 signatures in order to place a referendum on the ballot, and claim to have collected approximately 1.1 million.
Prop 8 supporters needed 694,354 signatures in order to place a referendum on the ballot, and claim to have collected approximately 1.1 million.
What Supporters Say:
Supporters of the amendment at ProtectMarriage.com, which includes photographs of (presumably married) heterosexual couples with children, cited the fact that California Proposition 22, written to ban same-sex marriage without revising the state constitution, passed with 61% in 2000 as part of their argument that the California Supreme Court's ruling was undemocratic.
What Opponents Say:
The amendment unquestionably revised the California state constitution's equal protection clause, which is not something that should be done lightly. Opponents have also argued that the amendment serves no practical purpose other than to marginalize, and express hostility towards, same-sex couples.
My Original Prediction of the Outcome:
Written before the November 4, 2008 election:
The amendment could very well pass, but my prediction is that it most likely will not.I still find it hard to believe, but it happened. The passage of Proposition 8 has permanently stained California's reputation on lesbian and gay rights, and suggests that the state is far more conservative on social issues than many had imagined.
Governor Arnold Schwarzenegger (R-CA) has already spoken out in opposition to the referendum, as has Democratic presidential nominee Barack Obama. In Massachusetts in 2004, when a similar amendment was proposed (but never successfully brought to a referendum), Governor Mitt Romney (R-MA) and Democratic presidential nominee John Kerry both supported it.
Clearly the climate has changed since the last major wave of anti-gay marriage amendments passed. The tide has been turning for some time, and I find it hard to imagine that California voters really want to be a conservative bulwark against legal rights for lesbian and gay couples.
