Constitutional Law

Calif. Ballot Initiative Threatens To Strip Marriage Rights From Same-Sex Couples

by Shannon Price Minter, legal director, National Center for Lesbian Rights

On November 4, California voters will be presented with a ballot initiative intended to strip away the fundamental right to marry from same-sex couples.  Proposition 8, known as the “Eliminates Rights of Same-Sex Couples to Marry Act,” would alter the California Constitution to bar lesbian and gay couples from marriage.  The proponents of Proposition 8 have raised an unprecedented $25 million to flood California with radio and television ads supporting this measure.  A significant portion of that money has come from out-of-state organizations with a long track record of opposing legal protections for gay and lesbian families, such as Focus on the Family and the American Family Association.

This year, California became the second state in the country, following Massachusetts in 2003, to provide same-sex couples and their families the full legal protections of civil marriage. On May 15, 2008, in In re Marriage Cases, the California Supreme Court struck down California's statutory ban on marriage by same-sex couples, holding that gay and lesbian individuals and couples must be permitted to exercise the fundamental freedom to marry.  In an unprecedented ruling, the court also held that sexual orientation is a suspect classification and that government discrimination based on a person's sexual orientation is therefore subject to the same strict scrutiny applied under the California Constitution to laws that discriminate based on religion, gender, or race. 

In 1948, in the landmark case of Perez v. Sharp, the California Supreme Court was the first in the country to strike down laws barring interracial marriage, holding that "the essence of the fundamental right to marry is the freedom to marry the person of one's choice."  In the Marriage Cases, the court relied on Perez in concluding that the government cannot constitutionally bar persons in same-sex relationships from exercising that same fundamental freedom of choice.  In an opinion authored by Chief Justice Ronald M. George, who was first appointed to the bench by President Ronald Reagan (then serving as California Governor), the court held: “in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.” Since the court's decision became final on June 17, 2008, more than 11,000 same-sex couples have married in California. 

If Proposition 8 passes – and current polls indicate that the election will be very close – it would mark the first time that voters in any state have stripped same-sex couples of an existing, established right to marry.  It would also mark the first time that California voters have used the initiative process to eliminate a fundamental right only for a particular group, based on a suspect classification. 

If Proposition 8 were enacted, the fate of the thousands of same-sex couples who have already married in California is unclear.  Some supporters of the initiative argue that it would render those marriages invalid.  Others, including scholars such as Erwin Chemerinsky and Douglas Kmiec, have expressed the view that Proposition 8 could not be given retroactive effect and that existing marriages of same-sex couples would continue to be valid.  For the more than one hundred thousand same-sex couples who live in California and for gay and lesbian people across the country, the stakes could not be higher.  And for all Americans, the vote on Proposition 8 will say much about our future. 

Are we headed for a day when gay and lesbian couples and their children will enjoy full legal equality?  Or will sexual orientation continue to be an acceptable basis for government discrimination?  For those who care about these issues, the significance of Proposition 8 cannot be overstated.   

Full post as published by ACS Blog on October 09, 2008 (boomark / email).