What exactly is Propostion 8?

[KevinS]

Hey American friends:

I'm just a Canadian bumpkin here, and I am confused a bit about what you call Proposition 8. Can someone explain it to me?

My [probably incorrect] understanding is that California passed a law allowing gay marriage, and then changed their mind. Is that correct?

Maybe we're a little backward up north here, but once we pass a law, we can't just change our mind. In Canada, marriage law comes under federal jursidiction, so when gay marriage was passed in 2003, it was legal in the enitre country, and that was the end of the story. Yes, lots of evangelicals yelled and screamed that world would end, but it didn't. Eventually everyone realized there was more interesting stuff to get all excited about and just moved on.

Kevin.

[Zerbie]

In the US, one hears a lot about 'states' rights.' Short version, there has always been debate about how much jurisdiction the federal government has, versus how much is alloted to states. There are differing opinions about whether marriage belongs to the jurisdiction of states or to the federal government.

In CA, a state court overturned previous legislation (I believe it was legislation formerly passed by voters, is that right everyone?) prohibiting marriage between members of the same sex. That was last May. In Nov, voters passed an amendment to the CA constitution eliminating the right (recently defended by the state court) for same sex couples to marry in CA.

Soon, we get to find out whether or not this amendment will be interpreted to nullify the nearly 20,000 same sex marriages that occurred between last July and last November.

[KevinS]

Thanks Zerbie. Wow, that sucks. My impression has always been that CA is very liberal. What made people change their mind about this? It just seems like a really quick flip-flop. It also seems cruel to so many people's lives. Not only the 20,000 marriages you are talking about, but also all the people who planned to get married, and now they can't.

Do you think they'll change their minds again?

[Alecto]

There's a lot of weird balances going on with prop 8.

The specifics of how "marriage" is handled IS considered a state's jurisdiction, hence part of the problem. THere is an actual federal law or policy (which are two different things, and I don't remember which it is) saying that states should recognize other states' marriage, so that straight people don't need to worry about whether or not they're still married if they move. DOMA (Defense of Marriage Act) signed by Bill Clinton made this untrue ONLY for gay marriages. There's all kinds of debate (I read it as: excuses) as to why he signed it and why he "had to" politically, but this is the number one NASTIEST piece of legislation currently on the books.

There's also some weirdness about courts versus votes of the poeple. The California history I don't remember as well, but there was something about people having voted on the ban before. It then got overturned as unconstitutional discrimination (which, historically, has kind of been the purpose of the Courts to preserve the rights of the minority). So, the people said "well if we can't discriminate according to our state constitution, let's CHANGE our constitution. Then we can make all sorts of crazy laws!". Which means the courts still don't know what to do with the couples who got married in the meantime (http://www.youtube.com/watch?v=8WpwAWUpsXM&feature=PlayList&p=8F2AF876E28D2DCB&playnext=1&index=4).

[pnggrad79]

Hi Canadian! Yes, we here in the good ole USA take away rights instead of letting people have them! You pretty much nailed that one on the head. We might as well rename ourselves RSA for Repressed States of America!

[Rick336]

Prop 8 was a law passed in California in November that said that the lives of LGBT Californians do not hold the same value as the lives of everybody else. Prop 8 says that LGBT Californians should remain second class citizens and that because their sexual orientation or sexual identity is different from heterosexuals then they are not worthy of the same freedom, respect, and pursuit of happiness that the rest of America enjoys.

Rick

[Zerbie]

Prop 8 was a law passed in California in November
Rick

Technically, it was a constitutional amendment. I don't think those can technically be considered 'laws'. It was not a legislative statute, but an alteration to the state constitution passed by voters.

The interesting twist here is that the CA state constitution has an equal protection clause in it. Courts will soon rule on whether or not it can be permitted, legally, for voters to amend the constitution the way they did, as it is in flagrant violation of the equal protection clause already IN their constitution.

[Matt Algren]

Technically, it was a constitutional amendment. I don't think those can technically be considered 'laws'. It was not a legislative statute, but an alteration to the state constitution passed by voters.

The interesting twist here is that the CA state constitution has an equal protection clause in it. Courts will soon rule on whether or not it can be permitted, legally, for voters to amend the constitution the way they did, as it is in flagrant violation of the equal protection clause already IN their constitution.
Another important and confusing wrinkle has to do with whether Prop 8 was an amendment to the CA constitution, which they claimed it was, or a revision to the CA constitution. It's a distinction that is unique to California. An amendment merely adds to the state constituton, while a revision makes a fundamental change to its core principles. An amendment melts into the rest of the constitution seamlessly, while a revision alters previously accepted boundaries. As Zerbie says, Prop 8 necessarily contradicts the equal protection clause; either there is equal protection and Prop 8 is invalid or Prop 8 is valid and the term 'equal protection' has been silently redefined. Because a revision is so much broader in scope, the requirements to get one on the ballot are much greater and include a vote by the legislature. Prop 8 didn't make that stop in the legislature and likely would not have made it through if it had. Therefore (according to many, including me), Prop 8 as passed is invalid and cannot be implimented.

[KevinS]

Holy smokes! I'm so sorry that gay Americans are still having to fight so hard for equal rights in marriage. I remember there was a lot of fussing here in Canada when gay marriage was passed in 2003. My brother-in-law was arguing that it would destroy the family. I just looked at him and asked, "Why, are you planning to go and marry a man right away?" At least it shut him up.

I have another related question. Can gay couples adopt children in the USA? Or is that also a state law? I think child services in Canada is provincial jurisdiction, but when they added "sexual orientation" to the Canadian charter of rights, it was no longer legal for any province to discriminate on that basis for any reason. So, now there are many gay couples with children.

[Zerbie]

Holy smokes! I'm so sorry that gay Americans are still having to fight so hard for equal rights in marriage. I remember there was a lot of fussing here in Canada when gay marriage was passed in 2003. My brother-in-law was arguing that it would destroy the family. I just looked at him and asked, "Why, are you planning to go and marry a man right away?" At least it shut him up.

I have another related question. Can gay couples adopt children in the USA? Or is that also a state law? I think child services in Canada is provincial jurisdiction, but when they added "sexual orientation" to the Canadian charter of rights, it was no longer legal for any province to discriminate on that basis for any reason. So, now there are many gay couples with children.

Yes, that depends upon the state. Voters in the state of Arkansas just voted, in Nov., to prohibit any unmarried couples (ie: gay couples) from adopting. As often as I've seen it, I still can't believe people would value baseless prejudice against a group of fellow citizens over the welfare of children, but that's precisely the case in AR.

[tdogg]

In 2000 Prop 22 passed by 62%, which excluded marriages of same sex couples from being recognized legally in CA. In May 2008, the California Supreme Court (CSC) voted, 4 to 3, to overturn Prop 22, thereby legalizing marriages of same sex couples. Meanwhile, the Yes of Prop 8 campaign was able to get an initiative on the November ballot which was passed with a 52% majority of California voters. It was presented as an amendment to the state Constitution.

As of November 5th, marriages of same sex couples are no longer legal in California. However, the CSC has agreed to hear arguments based on a lawsuit filed by 3 parties which seeks to overturn Prop 8. One argument is that Prop 8 is a revision and not an amendment and therefore appeared on the ballot illegally. A revision is required to be passed by 2/3 of the state legislature before being placed on the ballot for a popular vote. I believe it then requires a 2/3 vote by the people to actually be put on the Constitution.

Another lawsuit contends that Prop 8 discriminates religiously, as clergy who support and conduct marriages of same sex couples are now not allowed to do so. It is based upon the freedom of/from religion. That is a very interesting aspect but not sure how the CSC will view it. I'm not sure about the 3rd lawsuit, but there have been numerous Amicus (friend of the court) briefs filed on behalf of both the suits looking to overturn Prop 8 and those in support of upholding it.

The hearings I believe begin on March 5th, and a ruling is required within 90 days of the final hearing. The Yes on 8 people recently brought in attorney Kenneth Starr who has added a lawsuit that seeks to nullify the approximately 18,000 marriages performed between June 16th & Nov. 4th. That's about it so far.

It's a rollercoaster ride. Tuesday we had a lobby day where citizens were brought in to speak before Senators and Assembly Members and plead for them to support the senate and assembly resolutions which if passed would put each branch on record as supporting the overturning of Prop 8. Of course, most of the Republicans are staunchly opposed while the vast majority (save for one or two) or supporters. Some of both parties are undecided. There are so many more who have filed briefs supporting Prop 8 being overturned, but Yes on 8 has threatened a recall of any justice who votes to do that, and some are up for reelection in 2010.

It's a mess here right now. Many are hopeful, most are cautiously optimistic and some are resigned to lose this one. Some of the Yes on 8 people have stated if the CSC upholds Prop 8, they will then bring forth initiatives to prevent same sex couples from adopting, and a few have threatened to work to repeal domestic partnership laws. It's a very hopeful and exciting time for GLBT and allies, but also very scary. My own marriage is in jeopardy, and my 'family' who chose not to marry before Nov. 4th cannot now do that.