Proposition 8 Challenged

Proposition 8 results
The American Constitution does not deal with the issuance of marriage licenses. Legal marriage is a state CREATED institution. Legal marriage doesn’t EXIST except as state law sets forth.

No couple becomes legally married until after they and their witnesses and the officiating party, who does not have to be a member of the clergy, affix their signatures to the document. This proposition is about denying equal access to government services to all citizens. What this “banning” means is that government will be constrained from allowing same sex couples to apply for and to receive a marriage license like all other couples can do.

It does not change the fact that there are same sex couples. It does not change the variety found in the composition of families. Remove all the emotional, spurious and specious propaganda from the event and what we see is discrimination, plain and simple.

This proposition exposes the hypocrisy involved in denying same sex citizens equal access to obtaining a marriage license by re-creating them as a class of second class citizens in a state within a country that claims “equality” is a national cornerstone.

It will remain as a day in American history that points to the millions of dollars spent by right wing religious zealots on the creation and distribution of specious, spurious, and fallacious propaganda aimed at stirring up fear and loathing, rather than unity and love.

There will be court challenges, and, in fact, one is already underway. The petition filed with the California Supreme Court is available online and the ACLU’s press release explaining the challenge is available online too. The relevant text is found online as well.

It comes down to this: The provision of the California constitution which describes the process by which it may be altered uses both the word “amendment” and the word “revision”. Although the two words are usually paired, the provision which allows the electors to amend the constitution by initiative ONLY refers to amendment–it’s the only subsection of the “Amendment and Revision” statute which does not also use the word “revision”.

“Prop. 8, if it passes, conflicts with the equal protection clause (in the California Constitution),” Allred said at an afternoon news conference in her Los Angeles office on Wednesday. “We will argue to the court that Prop. 8 is a disguised revision to the constitution which cannot be imposed by the ordinary amendment process, which only requires a simple majority. We believe that then the court must hold that California may not issue marriage licenses to non-gay couples because if it does, it would be violating the equal protection clause as straight couple would have more rights, by being allowed to marry, than gay couples.”

Lambda Legal, the National Center for Lesbian Rights, and the ACLU also filed a lawsuit directly with the high court challenging Prop. 8. They, too, allege that the measure is invalid because it failed to follow the proper process required to make far-reaching changes to the California Constitution — such as denying a fundamental right to a minority and prohibiting the courts from remedying abuses of that minority’s rights. Source

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9 thoughts on “Proposition 8 Challenged

  1. The courts will not be making a decision on what most people think the issue is. What the courts have been presented with is a legal argument that concerns the use of the terms “amendment” and “revision” and their decision will be solely focused on that.

    It comes down to this: The provision of the California constitution which describes the process by which it may be altered uses both the word “amendment” and the word “revision”. Although the two words are usually paired, the provision which allows the electors to amend the constitution by initiative ONLY refers to amendment–it’s the only subsection of the “Amendment and Revision” statute which does not also use the word “revision”.

    “We will argue to the court that Prop. 8 is a disguised revision to the constitution which cannot be imposed by the ordinary amendment process, which only requires a simple majority. We believe that then the court must hold that California may not issue marriage licenses to non-gay couples because if it does, it would be violating the equal protection clause as straight couple would have more rights, by being allowed to marry, than gay couples.”

  2. The passing of Prop 8 reminds me when my state, Colorado, passed Amendment 2 about 15 years ago denying Gays and Lesbians protection from discrimination. I was so disappointed then as I am now and I hope that the courts will do the right thing with Prop 8 as they did with Amendment 2 by declaring it unconstitutional.

  3. Timethief–I am just so sick that Proposition 8 passed. I lived in San Francisco for most of my adult life–and still live there half the time, although I now am registered to vote in Massachusetts. I have so many gay friends that will be affected by this vote–but even beyond that, this really is a civil rights issue, even beyond my personal feelings. I so wished I could have been a voice for progress. As happy as I was on Tuesday night when Obama won, I was as sick on Wednesday morning when I learned that Prop 8 had passed.

    Melinda

  4. Hi TT,
    It actually surprised me to be honest. It seems like we take one step forward and two steps back.

    It also denies couples access to important benefits that could be shared, such as healthcare, and family medical leave. I could think of more.

    I have to wonder if it’s the economics of allowing same-sex marriage that in part drives such a decision. It seems there’s always money involved in policy making.

  5. @Delaney
    Hello there. I too was grieved by the outcome of the proposition 8 vote. Like Mildred loving I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry.

  6. @Paula
    By now you will have noticed that my comment from yesterday has disappeared along with Melinda’s comment too. It’s a long story that has to do with the web host making a mistake and deleting the array accidentally rather than updating it. My site was down, along with the sites of all others on this server all day yesterday. The site also went through an upgrade and a theme change and somewhere along the line I lost comments I didn’t even get a chance to read. I will be fishing through old emails trying to reconstruct them.

    Setting that aside I want to thank you again for sharing your experience and viewpoint on this important issue. I also agree that consenting adults regardless of their sexual orientation ought to be able to marry just as all other citizens can do. It’s utterly shameful that religious people fueled by fear and hatred launched a multi-million dollar campaign replete with specious and spurious propaganda to accomplish a bare marginal win on this proposition. Their behavior is totally out of keeping with the love one another & your enemies commandments, as well as, the judge not lest ye be judged commandment.

    It’s astonishing that the American Constitutional guarantees of equality upheld by the courts can be overturned by majority votes in states. IMO that’s what needs to be corrected at once. I urge you to read the most recent post here http://identitycheck-anok.blogspot.com/2008/11/case-for-equal-rights.html

  7. Paula,
    You summed up beautifully why this is so wrong to have passed. I have had many gay friends over the years and I hate that the freedoms and rights that I have are denied to them. It is wrong and is perpetuated by a group of fearful people that don’t know any better. Hopefully this will become a non-issue at some point in time and all human beings will have the same rights in the USA, regardless of any dividing factors. At least, we can hope and believe it will happen.

  8. Thank you for the excellent article.

    TO ALL WHO DO NOT SUPPORT GAY MARRIAGE:

    I think you’re good people, like me. I pay my taxes that support my schools and religious institutions so they can give back to the community. I don’t hurt anyone and only try to help. I oppose people who try to infringe on religious freedoms, and I don’t seek to infringe upon what “marriage” means to you. I appreciate that most of you DO approve of ‘domestic partnerships’ and ‘civil unions’ for gay people, but please listen to why that doesn’t work.

    The federal government gives married people about 1000 rights. The state gives them about 400 additional rights. The reason the government is involved in marriage at all is to promote and protect stable, happy families as basic units of society. Obviously marriage is not solely for procreation, as we do not remove that right from you if you are infertile, elderly, or choose not to have children. When you marry, you are automatically entitled to those 1400 rights, including the right to visit a spouse in the hospital, be added to your spouse’s insurance policies, acquire property with your spouse and automatically inherit it if your spouse dies, and many more. These 1400 rights are not simply and easily written up in a single civil document, nor always enforceable; for instance, a person under a state’s domestic partnership can’t force the IRS to give him the tax breaks afforded to married couples. It is extremely complex and doesn’t always work; I am aware of gay people whose partners died and the deceased’s hostile family successfully asserted their ownership of everything in spite of the contract, leaving the survivor destitute. Imagine children being involved, and a deceased partner’s hostile family takes your children from you because your civil contract didn’t stand up in court proving you were next of kin! In Arkansas, the majority just voted to prohibit unmarried people from adopting, meaning a gay person can’t even adopt their partner’s children to ensure that if their partner dies the children will remain with the surviving parent they love!

    ‘Civil unions’ and ‘domestic partnerships’ permit OSTENSIBLY most of the 400 state-afforded rights of married couples, but NONE of the 1000 federal ones, and I can tell you from personal experience that the state ones are NOT equal. Just one example is that to get on my partner’s insurance policy, we had to provide my certificate of domestic partnership, copies of financial records proving we had co-mingled finances and lived in the same home for at least two years, and more. If I died, my partner would have to wait at least two years to add her new partner to the policy to prove the relationship was ‘real’. Married people don’t even need to provide a copy of a marriage license, and if their spouse died today, they could add a new spouse tomorrow. This is only one example out of MANY.

    Other rights are specific to helping children of married people, including ensuring automatic inheritance rights, the right of a non-blood related parent to pick up a sick child from school, alimony and child support to help with their care in the event of divorce, and many more. No matter the makeup of the family or how it comes to be — be it traditional nuclear, or grandparents raising their grandchild, or a blended family resulting from divorced people remarrying, or single parents, or adoptive parents, or childless couples, or gay couples — ALL of these people deserve the same rights so they have the best chances of happiness and contribution to society.

    What I would like to see the FEDERAL government do is create one proto-marriage type of relationship (‘civil union’?) that applies equally to all people who want it, including granting them all 1400 of the rights and responsibilities that “married” people currently enjoy, and then simply leave the word “marriage” for religiously-inclined people who want to further consecrate their relationship according to their religions. I think that is what the MAJORITY of us all want. Unfortunately, the federal government is currently leaving the issue to states to decide, so we are stuck wrestling for the one word that currently encompasses all 1400 of those rights, and that word is “marriage”. Granting the existing rights encompassed by one word to a minority is a lot easier than changing 1400 laws to encompass them. That’s really all there is to it, see?

    I understand many of you are afraid that legalizing gay marriage will lead to your children being forced to learn in school that homosexuality is “normal”. I will be the first to agree with you that homosexuality is NOT “normal” – the parts don’t fit and we can’t make babies. But consider that in one out of every 100 live births, a child is born with ambiguous genitalia (intersexed). If God creates 1% of babies that way, why do we then do surgery to “correct” them to one sex or the other and make them “normal”? God made me abnormal too – I’m among the small percentage of people whose wiring is crossed so I’m attracted to my own sex. My abnormality doesn’t lead me to hurt anyone. The worst law I’ve ever broken is the speed limit. Learning that homosexuals exist isn’t going to turn any child homosexual, but it will help the small percentage born with this abnormality to feel less alone. That’s really the worst that could happen.

    As for the slippery slope arguments that legalizing gay marriage will automatically lead to legalizing polygamy or incestuous marriages, those forms of marriage existed throughout most of recorded history but are too impractical or undesirable for the vast majority of Americans to even consider. As for legalizing gay marriage leading to legalizing people marrying pets or children, these can’t even give informed consent. Please stay off the slippery slope; the ONLY topic we’re asking you to agree on is legalizing gay marriage.

    We gay people and our families are being hurt by laws as they stand, and all we are asking for is the concession that the word “marriage” include us so we may enjoy its rights – and responsibilities. I will leave you with the words of Mildred Loving, who wrote this forty years after her 1967 legal case struck down laws barring interracial marriage:

    “Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry.”

    Peace.

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