Public Policy Department

Proposition 8

Proposition 8 Update  

 

Proposition 8 has clarified the “Declaration of Rights” of the California Constitution, to read: “Only marriage between a man and a woman is valid or recognized in California.” The passage of this controversial citizen effort has led to constitutional questions on both sides.

There are currently three federal lawsuits filed by gay activists to repeal the 1996 Defense of Marriage Act that, if won, would require the United States Government to recognize gay marriages. Two of the three court cases directly challenge proposition 8. One of these cases, Smelt vs. United States,  got tossed out by a federal judge today on the basis that the defendants, a legally married gay couple from California, have no legal standing or “injury” as they were married before the enactment of Proposition 8, which the California State Supreme Court recently held that such marriages would remain intact.

Opponents of Proposition 8 have challenged the measure which passed last November with a vote of 52% to 47% stating that it could not be enacted as an initiative but rather as a constitutional amendment. This would require either a two-thirds vote or a statewide Constitutional Convention.

Attorney General Jerry Brown responded to these allegations in December and declared they had no standing and a vote by the Legislature was unnecessary. Although the Attorney General declared that Prop 8 was enacted legally, he stated in his brief that the initiative itself violated the Constitution as it infringes upon “inalienable or natural rights;” forcing the Yes on 8 campaign to file a brief responding to this unprecedented theory.

This is not the only issue which has been raised in the courts. Proponents of ProtectMarriage.com have also filed a constitutional challenge; this time to contest the campaign finance reporting rules which force campaign donors to divulge their information to the public. This has resulted in harassment including death threats against individual supporters, churches, and organizations.

The suit alleging that California’s Political Reform Act is unconstitutional was resolved when the judge ruled against ProtectMarriage.com on January 29^th.

Legislative Front

Both houses of the state legislature have gone on record opposing Proposition 8 just prior to the California Supreme Court’s hearing of the lawsuits against the proposition. After lengthy floor debates, Democrats passed HR 5 and SR 7 which express the opinion of the legislature that Proposition 8 was an unconstitutional revision and must be ruled invalid. The legislature’s passage of HR 5 and SR 7 violate the separation of powers doctrine which clearly instructs the legislature to refrain from influencing the judicial process, particularly pending legal cases.

Assemblyman Van Tran explained that HR 5 is an attempt to “retroactively disenfranchise the votes of over 7 million voters” who passed Prop 8. He went onto explain that it is also an “illegal ex parte communication with the court.”

In addition, the Sacramento City Council voted 8-1 on February 3rd joining an amicus brief urging the Supreme Court to overturn Proposition 8. The council joins seven other cities and two counties who are in opposition to the constitutionality of Prop 8.

Karen England of Capitol Resource Institute stated, “We urge every Californian to contact their city council and ensure they are not engaging in similar undermining of the will of the people.”

In the Courts

Oral arguments were heard on Thursday, March 5 at the California Supreme Court in San Francisco. The arguments were marked by lively exchanged between attorneys and justices as the constitutionality of Proposition 8 was debated. Several attorneys from the Pacific Justice Institute made a critical analysis of the arguments.

The justices appeared to be hesitant to overturn a direct act of the people and Justice Joyce Kennard directly disputed the notion that the Court must strike down Prop 8 merely because they had previously ruled that gay marriage was constitutional in California.  Justice Chin questioned whether the state should eliminate the concept of civil marriage entirely, leaving only civil unions or domestic partnerships available to all couples, heterosexual and homosexual alike. Overall, the justices seemed very unlikely to hold that Proposition 8 was retroactive so as to invalidate the same sex “marriages” entered into between its decision last summer and the passage of Prop 8 in November.

Federal Defense of Marriage Act

The Federal Defense of Marriage Act (DOMA) defines marriage as a legal union between one man and one woman for purposes of all federal laws, and provides that states need not recognize a marriage from another state if it is between persons of the same sex. 37 states have their own Defense of Marriage Acts (DOMAs), while 2 more states have strong language that defines marriage as one man and one woman. There are 30 states that have constitutional amendments protecting traditional marriage, including the three states (Arizona, California, and Florida) that passed constitutional amendments in November 2008.

Visit www.DOMAwatch.org to stay updated on current legislation.