Henry Juhala details on the politics behind Prop 8 in California
Between 1980 and 2000 I attended a number of “gay weddings” in California. Years later, in 2010, it sounds strange to call them weddings. They were all ceremonial events between spouses of the same-gender. None were legal or involved a license issued by the government to marry. Even back then, many in the gay community rebelled against using any term like marriage or wedding, Instead, if they were performed by members of the clergy, they were often called Holy Unions. Friends who did not want to associate their ceremony with heterosexual church weddings would often call them commitment ceremonies. Of course, none of these ceremonies were legal in California or any other state in the USA.
That has all changed in recent years. Many of the fifty states in the USA, including California, now have legal same-gender marriages or civil unions. California is the most prominent in the news with its legal battles over Proposition 8 (Prop 8). Outsiders who do not understand U.S. marital and family law, tend to be very confused. It is further complicated by variations between state laws on marriage that affects only residents of a particular state like California vs. federal law which affects all residents of the USA. It is like someone from the Americas trying to comprehend Indian laws and statutes like Section 377.
To help understand where California stands today regarding same-gender marriage (gay marriage) it is important to look at its recent history — including the key issues involved in the Prop 8 court case. How the present Prop 8 case is finally decided will have great impact on gay marriage laws elsewhere in the USA and likely in the world. .It is also important to keep in mind that most U.S. citizens consider themselves Christians (primarily Protestant, Catholic or Jewish). Much of their politics stem from the cultural structures influenced through these religious upbringings.
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Licensing requirements vary by state. What all states have in common is this. Licenses are issued by a local government agency. Before it can be finalized by the government it must be legitimized within a specified number of days in a formal ceremony officiated by a government official. Examples would be a city clerk, mayor or judge. Most religious clergy are also authorized to perform the ceremony on behalf of the government. After the ceremony, the government agent or clergy signs the license and forwards it to the proper government agency. Once a marriage license is signed by all parties, it legally binds the contractual relationship between the two parties and the government. Many churches consider it a binding marital contract with them as well. .
Now add those variations to the confusion and political power struggles surrounding gay marriage. Much of it stems from the succession of many laws that originated in Europe. Most marital and family law in Europe changed over centuries based on the influence of the church and the wishes of the Monarch of the country. While marital laws were being implemented in Europe, the head of the church in England or other countries in Europe were also the King or Queen. As such, there was little separation of church and state. Contrasted to that, one of the founding principles of the USA was in reaction to that doctrine. From its beginning, there has historically been a clear separation of church and state in the USA. However, more and more, politicians and churches do not honor that separation in matters of marriage. On paper, marriage is a written legal contract signed by two parties and official witnesses for purposes of shared property, shared responsibilities and shared benefits. The arguments from the Abrahamic religions against gay marriage seem to forget about that and focus on marriage solely as a sacred sacrament of the church for which the church has the ultimate authority. In their arguments against gay marriage it is almost always about its connection to the church and seldom about the legal civil contract of marriage.
In the 1980s and 90s there was a big rise in the influence on U.S. politics from a conservative segment of the population called the Religious Right. Most of the Religious Right had strong ties with conservative Protestants. Fundamentalist Protestants (often referred to as Evangelicals) aligned themselves with Catholics, Mormons, Orthodox Jews and other conservative religious groups in order to gain support for much of their political agenda including opposition to gay rights. Most hold to a belief in the literal and legalistic interpretation of the Bible — hence the reference to Fundamentalists. In their literal translation, gays were considered an abomination worthy of being put to death and marriage was reserved exclusively to being between one man and one woman. Furthermore marriage was the only institution where sex was allowed and within in it only for purposes of procreation. Other minority religious groups in the U.S. like Islam and Hinduism have also joined in the fervent campaign against gay marriage with very similar arguments. .
Admittedly, this is a bit of an over-simplification. I know very few Christians who would seek to put gays to death or use
California has traditionally been viewed as politically progressive. It has historically been fertile ground for the advancement of gay rights. But, with big gains in conservative segments of the population and the insertion of confusion regarding the U.S. Doctrine of Separation of Church and State, anti-gay marriage forces have successfully thwarted much of that advancement. Consider the Vatican as an example and the long history of the influence of monarchical European governments on U.S. marriage law. The Catholic Church issues decrees from The Vatican how its local congregations and clergy in the U.S. should view gay marriage. In fact they encourage their priests and staff to be outspoken against it. They and the Mormon Church have also funneled huge sums of money into fighting against gay marriage laws in California and Maine and other U.S. states.
For the most part, the Catholic Church appears to deny any separation of church and state on matters of marriage and gay rights. In their eyes (as a church state) there is only one type of marriage they will recognize — that of a man and a woman. Under the U.S. Doctrine of Separation of Church and State in the USA, churches are also banned from having undo political influence on matters of state. Gay activists contend The Catholic Church ignores that and holds to their own legalistic interpretation in which the church lawyers say it only refers to requiring their members to vote for a particular candidate. They contend a legal initiative, like Prop 8, is not a candidate, With that in mind, The Catholic Church, The Mormons and many other religious groups have adamantly promoted their political position on gay marriage.
State initiatives are recent developments over the past couple of decades. A number of U.S. states allow citizens to initiate state law by signature petitions signed by a certain percentage of state voters. This helps voters circumvent the traditional means of state legislatures creating state laws. How legitimate these initiatives are under the Constitution of the U.S. is still under contention. It is particularly contentious when an initiative itself is contrary to laws that courts have previously found unconstitutional.
That is precisely what brings us to the court case involving Prop 8 and its predecessor in California, Prop 22. But, even before we get to Prop 22, there are a few other milestones in California that are important to note.
- 1975 sexual acts performed in private by consenting adults was decriminalized.
- 1978 The Briggs Initiative (documented in the movie about Harvey Milk) was defeated by a slim margin. If it were passed it would have banned gays, lesbians and their supporters from teaching in California schools. This was a significant win in the state in that it was the first major time that most of the state rallied for gay rights related issues. But it also made the religious right take note and seek to get more political allies for their causes. It was also one of the first places in California politics where the religious right had a broad coalition of support for a given political cause. Political coalitions they made in defending the Briggs Initiative would come in handy in many anti-gay campaigns down the road. They also found an ally in Governor George Deukmejian. In 1984 the State Assembly voted to alleviate job discrimination based on animus against gays. In most states Governors have a right to veto bills unless there is a larger majority of legislators who can override the veto. With pressure from the religious right, Gov. Deukmejian chose to veto the bill and it was defeated without sufficient votes to override his veto. Later the bill was revised and added to the state’s labor code in a weakened modified version in 1992.
- In 1993, based on a court case in the State of Hawaii, the court decreed Hawaii’s constitution required a compelling reason not to extend to gays the same rights that heterosexuals had. This concerned anti-gay forces all across the USA.
- In a counter action move in 1996, the U.S. Congress voted in a bill called the Defense of Marriage Act (DOMA). This prevented same-gender couples from receiving the rights, benefits and responsibilities that heterosexuals received and prevented the federal government from recognizing any kind of same-sex relationship. A majority of U.S. states followed with similar laws within their state. In some cases, however, they ruled against gay marriage, but recognized on the state level civil unions and domestic partnerships.
- In 1999 California developed a Domestic Partner registry. It recognized the relationships of same-sex couples and straight couples over 62. It provided them with most, but not all of the rights, benefits and responsibilities of marriage. Depending on who is counting, this numbers from 300-400 benefits. The problem remained that there were still over 1000 benefits at the federal level that were not allowed on the state level. Even state marriages will not grant these federal benefits. But, having the word marriage attached to a relationship has proven much more beneficial than calling someone a partner saying one has been “civil unioned”.
- In 2000, voters took action against these gains. There was fear that gays were gaining too many rights and that the exclusive definition of marriage as identified by the church was in jeopardy. So, another initiative was born. It was California Proposition 22 — otherwise known as the California Defense of Marriage Act. It was spearheaded by an outspoken critic of gay rights named Senator Knight and was mainly funded and supported by fundamentalist Evangelicals. Mr. Knight incidentally also had a gay son. Prop 22 refused to recognize gay marriages in the state even if those marriages were contracted in another state.
A number of entities challenged Prop 22 as being unconstitutional. Gradually their challenges made their way up the court system.
In 2004, Mayor Gavin Newsom of San Francisco, California declared the County Clerk’s office had the authority to issue licenses to same-gender couples. Licenses were granted for several weeks. Eventually the Supreme Court declared the city and county action as illegal and required them to go back to enforcing the marriage codes that were originally in place. However, the court also said that San Francisco was free to challenge the constitutionality of the existing marriage laws. So the city and county of San Francisco took them up on their offer and filed a writ with the court saying that “all California statutory provisions limiting marriage to unions between a man and a woman violate the California Constitution.”
This court challenge became known as “In re Marriage Cases“.
Fearing that the courts would find in favor of gay marriage in the courts, a new initiative was qualified for the 2008 California election ballot in November. This initiative was called Proposition 8. It simply stated that marriage in California was between one man and one woman. With the initiative now on the ballots, the gay rights opponents tried to head off a final rule from the Supreme Court regarding “In re Marriage Cases”. But, the court declined.
On May 15, 2008, the California Supreme Court ruled on “In re Marriage Case” in favor of gay marriage by a vote of 4 to 3. Its ruling declared that gay rights and gay marriage is subject to “strict judicial scrutiny” of the court and that marriage is a “fundamental right” under “Equal Protection Clause” of Article 1 of the California Constitution. As such, the previous law banning same-sex marriage was declared unconstitutional. The court further declared that any law discriminating against gays based on “sexual orientation” is constitutionally suspect. California Chief Justice Ronald George referred to a prior court case called Perez v. Sharp. Based on that case, George specifically noted that the “equal respect and dignity” found in heterosexual marriages is a “basic civil right”. He further noted that sexual orientation is a “protected class” in the same way the race and gender are protected by the U.S. Constitution. The court further declared that any law discriminating against gays based on “sexual orientation” is constitutionally suspect. This is significant. The California Supreme court was the first state court in the country to put sexual orientation under the “strict scrutiny” guidelines of the Constitution.
As expected there were immediate attempts at challenging this ruling. But, the court declared same-gender marriages in California can proceed. Remember this was May and there was a ballot initiative later in November to rule gay marriage is solely between a man and a woman. So, between May and November gays were allowed to marry in California.
Here are further holdings from the court regarding “In re Marriage Cases”:
- Sexual orientation is recognized as a suspect class for purposes of the Equal Protection Clause of the California Constitution.
- Offering a legal relationship called “marriage” to opposite-sex couples while consigning same-sex couples to “domestic partnerships” impinges upon the fundamental right to marry by denying such legal relationships equal dignity and respect.
- The distinction between marriage and domestic partnerships risks the right to privacy regarding sexual orientation for those in domestic partnerships.
Both because a suspect class is targeted and because fundamental rights are impinged upon by the challenged provisions, the strict scrutiny standard of review applies, under which those provisions limiting marriage to opposite-sex couples must serve a compelling state interest and be necessary to serve such an interest. Neither being the case, laws limiting marriage to opposite-sex couples are unconstitutional.
So, from June 15, 2008 until November 5, 2008 California granted marriage licenses to same-gender couples. That all stopped when on November 4, 2008, California voters approved Prop 8 by a margin of 52% to 48%. In an ironic move, the courts shortly thereafter ruled that same-gender marriages performed in other states would be granted all the rights and privileges of marriage itself, but without the formal use of the word “marriage”. The court also ruled that all gay marriages performed before the November 4th vote would be valid.
Thus California has four sets of criteria regarding same-gender marriages. There are gay marriages performed in San Francisco that were valid for about one month, but are not now considered valid unless there were re-marriages between May and November 2008. There are gay marriages performed between May and November 2008 that are legal in California. After November 4th any gay marriages performed in California would be deemed invalid according to Prop 8. However, legal same-gender marriages performed in another state is considered valid in California.
While Prop 8 was still under consideration by the voters, people started taking steps to take the issue to the courts if the people approved Prop 8 and invalidated gay marriages. Stepping up to the plate to initiate the challenge in the court system was Ted Olson and David Boies. Olson and Boies were on opposite sides of an infamous court case involving the election of George W. Bush and Al Gore for the Presidency of the U.S. in 2000.
Olson is a surprising part of the legal team in that he is viewed as ultra conservative and took to trial many of the kinds of cases the religious right were in favor of. But, both Boies and Olson felt they had a constitutionally valid case for overturning Prop 8 for similar reasons that the prior California court ruled in favor of “In re Marriage Cases“. Their argument is that the vote itself, the process of the vote and the outcome of the vote that took already existing rights guaranteed under the constitution of the California Constitution and the Constitution of the U.S.
The ruling from the California Supreme Court regarding “In re Marriage Cases” gives them solid footing regarding the constitutionality grounds. In January and February 2010 Olson and Boise argued the case of Perry v. Schwarzenegger in U.S. District Court. Perry was one of party in two couples who were challenging the Prop 8 vote. Schwarzenegger, of course, is the Governor. As such, he is the lead party named in the defense of the Prop 8 vote. The District Court is a U.S. Federal Court one step between the California court system and the U.S. Supreme Court. It is generally understood that whatever the outcome of this particular court case, it will be appealed to the U.S. Supreme Court. It is speculative the Supreme Court of the United States (SCOTUS) would accept the case, but it is generally understood that they would. To date, Boies and Olson have rested their case. Both also have excellent histories in getting cases to, and winning them at, SCOTUS. The present District Court judge hearing the case, Judge Vaughn Walker (who incidentally is gay) has set February 26 for final arguments on the case after which he will take time to render his ruling. His ruling could come quickly or could take several weeks or even months.
Some key points that have been argued thus far are as follows:
- Is homosexuality a choice? If it is a choice, the counter argument is then that it does not need to be granted status as a protected class and thus should not be granted rights under the constitution or laws of the state. Further arguments are that if it is a choice, it can be legitimately changed and gay people can be made straight through reparative therapy programs. However, there was major time spent with people who had gone through such reparative programs to demonstrate the kind of emotional harm such programs cause to gay individuals. There are lots of scientific peer-reviewed studies that demonstrate that being gay is not a choice but a pre-birth condition that is likely a combination of genetics and other biological or environmental factors and none that indicate it is a choice that can be changed. Also every major medical, scientific, anthropological and psychological group has said that being gay is a healthy, normal and mentally stable condition. It is not a mental disorder as previously thought or argued in prior court cases.
- Another key focus was on the tactics that the proponents of Prop 8 used in securing the vote. In many cases the opponents used fear and unfounded facts to help secure a vote in favor of denying marriage rights to gays. Animus, or feelings of animosity were key buzz words in the trial. It was argued that animus against gays played a key role in developing and implementing the advertising strategy and talking points the proponents of Prop 8 used in convincing voters to vote against gay marriage. The courts have previously ruled that animus is not a valid means of creating law for any minority group. If animus was used in this case, it should help invalidate the vote.
- A key part of the argument is also whether the initiative process itself is a legitimate democratic process to take rights away from citizens that the defenders of gay marriage say is part of rights and freedoms guaranteed under the 14th Amendment of the U.S. Constitution. The argument is that the Constitution and other laws of the U.S. are set to help protect the tyranny of the majority from taking away the rights granted to a minority or protected class of citizens. The opponents of course argue that they are protecting the institution of marriage and that allowing gays to marriage would destroy the traditional form of marriage as the Bible and society has historically deemed it to be. They also argue that giving gays the right to marriage is giving them rights that are “special rights” and not something guaranteed under the constitution. They consider it a behavioral choice. Behavior they contend is not a right and does not come with benefits granted to other minorities like those granted because of race, gender, etc.
- Another key argument is whether denying gays the right to marry advances the state interests. If lack of access to the same rights and benefits as heterosexuals have is harmful to the gay individuals and families involved, it is deemed to have a negative impact on the individuals and thus does not advance the state interests. If it is harmful to the state, it is deemed to not advance the state interests. They also argue that having four classes of marriage status in the state for gays does not advance the interests of gays or the state. San Francisco also demonstrated the kind of financial benefit allowing gay marriages would positively have on the city. A key argument necessary to answer regarding the status quo of the state’s interest is how would gay marriage harm opposite-sex marriages. The blunt answer from the anti-gay marriage expert was “I don’t know”. He repeated himself, “I don’t know”. So apparently, based on expert witness, there is no known harm to opposite-sex marriage. .
The issue of marriage as a tool of procreation was also central. Those in favor of keeping marriage as solely for one man 
The kind of clout and political power that gays have in the U.S. and in California was given significant time and focus. The attempt was made to argue that gays have important political power, financial earnings and social clout. Thus they don’t need the courts intervention as a protected class of people who should be given rights different from straight people. The counter argument of course was evident in the fact that even with all this, Prop 8 was voted down — as have been other marital and gay rights measures in recent years. Most of the rights given to gays have been by the courts for the very reasons Boies and Olson are arguing this court should give them rights to gay marriage.
The anti-gay marriage proponents seemed to have had only a few key expert witnesses. Before the trial began, Judge Vaughn authorized the use of cameras in the courts to document the testimonies. That was later rescinded by SCOTUS. But, it was used as an argument as to why some of the key expert witnesses against gay marriage bowed out. It seemed like Boies and Olson were highly prepared and the opposing legal team was not. It was almost as if they wanted to lose the case so they could take it to SCOTUS. It might also have been they wanted to keep some of their ammunition for a future SCOTUS trial. That could backfire on the off-chance that Vaughn’s court upholds gay marriage in California and SCOTUS does not take the challenge to it.
It is clear by many of the arguments opposing gay marriage that they still view marriage the same way the Vatican or other church-state entities view it. They do not differentiate in most of their arguments the interests of the state. Most of the interests they presented were the interests of conservative religious right folks seeking to deny the same basic civil rights to gays that heterosexuals have through their marriage contact. A huge component of this is related to the inequality of taxes. Boies and Olson made some good cases for the civil areas of this as it relates to medical and insurance costs that gay families have to absorb above many of the costs that straight families incur. From what I can tell, they touched very little on the inequalities of taxes between the two groups. Perhaps they saw it as a negative interest of the state and didn’t want to go there, but it is a definite inequitable burden that gays face. It was also made clear that what gays want was purely in the realm of civil rights under the Constitution. Gays are fine to leave the religious “rite” of marriage to the church and are more than willing to exempt church clergy from any legal requirements to marry gays as long as sufficient other civil agents are qualified to do so. This then takes away many of the fears and the arguments by religious groups that they would be required to perform gay marriage ceremonies that may be against their personal or religious group’s beliefs.
One of the benefits of these kinds of court cases is the volumes of printed materials that the lawyers along with friends of the court enter into evidence on behalf of one side of the case or the other. That is why court cases have been so powerful a tool for gay rights. Truth and fact are on the side of documents, case studies and scientific papers presented to the court. Judges and their clerks review, weigh and often site some of the evidence presented in this manner in the final court brief. Because we don’t have final arguments yet and because we don’t know all the written evidence that is being presented. it is hard to judge how this case will go.
As well, it is worthy to note that other cases are also making their way up the court system. The Massachusetts Attorney General just submitted a case to the court saying that the federal Defense of Marriage Act (DOMA) banning rights and benefits of marriage at the federal level is doing harm to those legally married in Massachusetts. As well, Congress is presently reviewing the military’s policy of Don’t Ask / Don’t Tell (DADT). There are clear overlaps in their policy regarding how to treat members of the military who are or want to get legally married in a state like Massachusetts or California. Some of these may need to get answered by the court system.
Lastly, there is a signature process underway in California to put an initiative on the ballot in 2010 to rescind the voter decision of Prop 8 that was voted on in 2008. Considering the Prop 8 vote was 52 to 48%, gay marriage advocates feel the populace of the state are educated enough now that they would vote in favor of gay marriage a 2nd time around.
Either way, by another vote or by a court decision, gay marriage may once again be legal in California within a couple of years.
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