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2008 California Proposition 8

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Proposition 8 is an initiative measure on the 2008 California General Election ballot. If passed it would amend the California Constitution with a new section that would read "only marriage between a man and a woman is valid or recognized in California." The measure, as submitted for the ballot by petitioners, is called the "California Marriage Protection Act."[1][2] The ballot title, as prepared by the Attorney General Jerry Brown, is "Eliminates Right of Same-sex Couples to Marry."[3]

History

Background

Until 1977, California did not explicitly define marriage as being between a man and a woman, but court decisions, and some statutes, dating from both statehood and the 1872 codification of the civil law, assumed as much.[4][5] In 1977, the legislature amended Civil Code section 4100 (predecessor to what is now codified at Family Code section 300) to read that marriage is "a personal relation arising out of a civil contract between a man and a woman".[5] In 2000, voters passed ballot initiative Proposition 22, which changed the California Family Code to formally define marriage in California between a man and a woman. However, other laws have been passed by the legislature (since 1999) which recognize domestic partnerships and afford them some of the rights of marriage.[5]

A number of developments arose in the wake of Mayor Gavin Newsom's 2004 decision to perform same sex marriages in San Francisco. The marriages were soon annulled by the courts, but San Francisco began a legal challenge that was consolidated with other cases as In re Marriage Cases. On May 15, 2008 the California Supreme Court, by a vote of 4–3, ruled in that case to strike down Proposition 22 and all other prohibitions on same-sex marriage, as violating the state constitution, and ordered the state to begin processing same-sex marriages as of June 17, 2008.[6] The court subsequently refused to issue a stay of its order. [7]

While the case was under way, Governor Arnold Schwarzenegger vetoed two legislative bills approving same-sex marriage. Anticipating that either the courts or the legislature might overturn Proposition 22, opponents of same-sex marriages introduced several attempts to place a constitutional amendment before voters that would prohibit same-sex marriages—and in some cases, domestic partnerships as well.[8] Prior to 2008, none had made it to the ballot.

Initiatives

In late 2007 and 2008, at least four different groups sponsored new ballot initiatives for a constitutional amendment prohibiting same-sex marriages. The one that did obtain enough signatures,[9] is the "California Marriage Protection Act"[10] (officially titled the "Limit on Marriage" Constitutional Amendment by the California Attorney General), sponsored by ProtectMarriage.com[11]. During the initiative process, what is now Proposition 8 had been assigned the number 07-0068.[12] Among the individual sponsors is Gail Knight, the widow of Pete Knight, who sponsored Proposition 22.[12] A rival proposal, the "Right to Protect Marriage Initiative", sponsored by the organization voteyesmarriage.com, was unable to obtain enough signatures, which the organization claimed was due to inability to raise funds.[13]

Proposed amendment

If passed, the amendment would override the ruling in In re Marriage Cases that struck down both the 1977 law and Proposition 22.[14] The Constitution, as amended, would add a new section (Section 7.5) to Article I, placing it between the state Equal Protection clause and nondiscrimination in business and the professions. This new section would read:

Only marriage between a man and a woman is valid or recognized in California.[10][15][16]

According to Joan Hollinger, a professor at the University of California, Berkeley, Boalt Hall School of Law, "Constitutional scholars agree that the amendment cannot be effective retroactively."[17] Because of this, it is unclear of what status those gay marriages made before November would be under.

Ballot summary language

In November 2007, California Attorney General Jerry Brown prepared a title and summary for the signature-gathering petition that reads:

LIMIT ON MARRIAGE. CONSTITUTIONAL AMENDMENT. Amends the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local government: The measure would have no fiscal effect on state or local governments. This is because there would be no change to the manner in which marriages are currently recognized by the state.[18]

After the measure qualified for the general election the Attorney General revised the descriptions of Prop. 8 for the upcoming Voter Information Guide. On July 22, the California Secretary of State made the proposed ballot information available for public review. The new ballot label (condensed version of the title and summary) reads:

ELIMINATES RIGHT OF SAME-SEX COUPLES TO MARRY. INITIATIVE CONSTITUTIONAL AMENDMENT. Changes the California Constitution to eliminate the right of same-sex couples to marry in California. Provides that only marriage between a man and a woman is valid or recognized in California. Fiscal Impact: Over next few years, potential revenue loss, mainly sales taxes, totaling in the several tens of millions of dollars, to state and local governments. In the long run, likely little fiscal impact on state and local governments. [19]

Through a spokesperson, the Attorney General explained that "the change was necessary because of the dramatic turn of events that have taken place since the petitions were circulated: namely that the California Supreme Court legalized same-sex marriage and thousands of gay couples have since wed."[20] The text of the actual proposed amendment has not changed.

Proposition 8 supporters immediately mounted a legal challenge to the changes, contending that Attorney General Brown had inserted "inflammatory" language that would "unduly prejudice voters against" Proposition 8.[21] Opponents to the measure declared their support for the language, while representatives of the Attorney General vouched for the neutrality and accuracy of the language.[22] On August 8, 2008, a judge turned down this legal challenge, affirming the new title and summary.[23] Proponents of Prop. 8 immediately appealed to the decision.[24] The Court of Appeal denied their petition the same day, and they did not seek review by the Supreme Court of California.[25][26]

  • On June 4, 2008, the Court denied a petition to stay its order on Proposition 22.[27]
  • On July 16, 2008, the California Supreme Court dismissed a motion for pre-election review of Proposition 8 which would determine whether it was a constitutional amendment or constitutional revision. Were the court to have found Proposition 8 to be a constitutional revision, it would have been removed from the ballot.[28][29] The question of whether Proposition 8 is a constitutional amendment or constitutional revision remains unresolved.
  • On August 8, 2008, the Court turned down a legal challenge aimed at reversing the renaming and rephrasing of the official Proposition 8 language.[23]

Proponents and opponents

Proponents

The ProtectMarriage.com[11] organization sponsored the initiative that placed Proposition 8 on the ballot and continues to support the referendum. Other significant supporters include Republican State Senator Tom McClintock and 20 other Republican State Senators and Assemblymembers.[30]

Republican presidential nominee and U.S. Senator John McCain released the following statement of support for the proposed constitutional amendment:

I support the efforts of the people of California to recognize marriage as a unique institution between a man and a woman [...]. I do not believe judges should be making these decisions."[31]

Religious organizations which support Proposition 8 include the Roman Catholic Church [32], Knights of Columbus (Catholic organization that donated over $1 million in support of the measure[33]), Union of Orthodox Jewish Congregations of America[34], the Church of Jesus Christ of Latter-day Saints [35] (LDS members as a whole have donated at least $5 million in support of the measure[36][37]), a group of Evangelical Christians led by Pastor Jim Garlow (head of Skyline Church) and Pastor Miles McPherson (former San Diego Charger and head of the Rock Church in San Diego[38]), American Family Association (donated $500,000 in support of the measure), Focus on the Family (donated over $400,000 in support of the measure[39]) and the National Organization for Marriage (has donated over $900,000 in support of the measure[40]).

Opponents

Equality for All is the lead organization opposed to Proposition 8.[41] They also run the NoOnProp8.com campaign.[42] Republican California Governor Arnold Schwarzenegger stated that although he has opposed and has vetoed legislative bills that would legalize same sex marriage in California, he is opposed to the initiative and other attempts to amend the state's constitution.[43] Schwarzenegger released the following statement on May 15, 2008 regarding the ruling:

I respect the Court's decision and as Governor, I will uphold its ruling. Also, as I have said in the past, I will not support an amendment to the constitution that would overturn this state Supreme Court ruling.[44]

Democratic presidential nominee and U.S. Senator Barack Obama has also stated he is opposed to Proposition 8,[45][46] as has the U.S. House Speaker and California Representative (8th District) Nancy Pelosi.[47]. Both Dianne Feinstein and Barbara Boxer, the two senators representing California, have voiced their opposition to Proposition 8,[48] as have the mayors of San Francisco and Los Angeles, Gavin Newsom and Antonio Villaraigosa, respectively.[49][50]

Six senior California Episcopal bishops issued a statement opposing Proposition 8 on September 10. 2008.[51]

Actor Brad Pitt donated $100,000 in September 2008 to fight the initiative.[52] It was also announced Monday, September 23rd 2008 that Steven Spielberg had matched Brad Pitt's donation of $100,000 to fight Proposition 8.[53] Software designer and philanthropist Bruce Bastian has also donated $1 million to fight the proposition.

Opinion polls

A simple majority of votes cast is required to enact a constitutional amendment.[54]

Date of opinion poll Conducted by Sample size In favor Against Undecided
14 September 2008[55] The Field Poll 830 38% 55% 7%
27 August 2008[56] Public Policy Institute of California 1,047 40% 54% 6%
17 July 2008[57] The Field Poll 672 42% 51% 7%
28 May 2008[58] The Field Poll 1,052 42% 51% 7%
23 May 2008[59] Los Angeles Times/KTLA 834 54% 35% 11%

Reliability of polling data

There is some debate about the extent to which opinion polls accurately reflect the electorate's views on same-sex marriage, due in part to social desirability bias (i.e. voters telling pollsters what they think the pollsters want to hear). The magnitude of such an effect is hotly contested.[60]

In the 2000 primary election, Proposition 22 passed with a margin eight points greater than predicted by the final poll. The Field Poll immediately prior to the election predicted 53% of voters in favor.[61] The actual vote in favor was 61.4% of votes cast (of all ballots, 58.6% voted "yes," 36.9% voted "no," and 4.5% did not vote).[62]

An analysis by Patrick J. Egan of New York University suggests that such gaps have been falling steadily over recent years. Seven of the states that voted on marriage bans in 2006 have polling data available. In those, the average gap between polled support for the measure and the final outcome was under one percentage point.[60]

See also

References

  1. ^ Folmar, Kate (2008-06-02). "Secretary of State Debra Bowen Certifies Eighth Measure for November 4, 2008, General Election" (PDF). California Secretary of State. Retrieved 2008-08-07.
  2. ^ "Limit on marriage. Constitutional amendment". protectmarriage.com.
  3. ^ "Anti-gay activists abandon effort to rewrite California amendment". Washington Blade.
  4. ^ IGS Library staff. "Same-Sex Marriage in California - Overview and Issues". UC Berkeley, Institute of Governmental Studies. Retrieved 2008-10-18.
  5. ^ a b c "In re Marriage Cases" (PDF). Retrieved 2008-06-04.
  6. ^ Demian Bulwa (May 15, 2008). "Opponents of same-sex marriage plot their campaign strategy". San Francisco Chronicle.
  7. ^ "Order re: Denial of Rehearing and Stay" (PDF) (Press release). Supreme Court of California. 2008-06-04. {{cite press release}}: Check date values in: |date= (help)
  8. ^ Michael Foust (2006-01-06). "MARRIAGE DIGEST: Signature drive for Calif. marriage amend. fails; Cherokee lesbian couple wins court case". Baptist Press.
  9. ^ Apparently, as of May, 2008
  10. ^ a b Scan of Initiative from California Attorney General's web site
  11. ^ a b "ProtectMarriage.com". Retrieved 2008-07-07.
  12. ^ a b Seth Hemmelgarn (January 31, 2008). "Anti-gay initiative drive back on". Bay Area Reporter. {{cite news}}: Check date values in: |date= (help)
  13. ^ "An Important Update from VoteYesMarriage.com". Retrieved 2008-05-18.
  14. ^ Demian Bulwa (May 15, 2008). "Opponents of same-sex marriage plot their campaign strategy". San Francisco Chronicle. {{cite news}}: Check date values in: |date= (help)
  15. ^ "Propositions that are on the November 4, 2008 General Election Ballot", California Secretary of State
  16. ^ Text of Proposition 8, Official Voter Information Guide (draft copy), retrieved July 28, 2008
  17. ^ The Advocate, July 1, 2008 issue, article "Summer of Love, Winter of Struggle" by Sue Rochman.
  18. ^ "Initiative Measure Title and Summary (07-0068)" (PDF). California Attorney General. 2007-11-29.
  19. ^ "Ballot Label (Proposition 8)" (PDF). California Secretary of State. 2008-07-03.
  20. ^ "Opponents of gay marriage say they'll sue over changed wording in Proposition 8". LA Times. July 29, 2008. {{cite news}}: Check date values in: |date= (help)
  21. ^ Swift, Mike (2008-07-29). "Prop. 8 supporters sue over gay marriage ballot language". Mercury News. MediaNews Group. Retrieved 2008-08-07.
  22. ^ Garrison, Jessica (2008-07-28). "Gay marriage foes challenge ballot wording". AZ Central.com. Retrieved 2008-08-07.
  23. ^ a b Egelko, Bob (2008-08-08). "GJudge refuses to order change in Prop. 8 title". Sfgate.com. Retrieved 2008-08-08.
  24. ^ "Prop. 8 proponents will appeal decision upholding flawed ballot title". ADF Media Relations (press release. 2008-08-08. Retrieved 2008-08-08.
  25. ^ Egelko, Bob (2008-08-12). "Prop. 8 backers drop challenge on wording". San Francisco Chronicle.
  26. ^ "Order Denying Petition (Case No. C059606)". California Court of Appeal, 3rd District. 2008-08-08.
  27. ^ "Calif. Gay Marriage Ruling Goes Forward". CBS News. June 4, 2008. {{cite news}}: Check date values in: |date= (help)
  28. ^ Dolan, Maura (2008-07-17). "Bid to ban gay marriage will stay on ballot, California Supreme Court rules". Los Angeles Times. David Hiller. Retrieved 2008-08-07.
  29. ^ Attorney General of California - Initiatives
  30. ^ "Protect Marriage » Endorsements". Retrieved 2008-07-31.
  31. ^ "McCain Supports Efforts to Ban Gay Marriage". U.S. News & World Report. 2008-06-27. Retrieved 2008-09-01.
  32. ^ "Catholic Bishops Endorse Prop. 8". Retrieved 2008-09-19.
  33. ^ "Proposition 8 to Protect Marriage Receives $1 Million Donation from the Knights of Columbus Catholic Organization". Retrieved 2008-09-19. {{cite web}}: Cite has empty unknown parameter: |1= (help)
  34. ^ "Orthodox Join Fight Against Gay Nuptials". Retrieved 2008-09-19. {{cite web}}: Cite has empty unknown parameter: |1= (help)
  35. ^ "California and Same-Sex Marriage". Retrieved 2008-09-05.
  36. ^ "LDS Donate Millions to Fight Gay Marriage". Retrieved 2008-09-17.
  37. ^ "Prop 8 supporters see surge in donations". Retrieved 2008-09-19.
  38. ^ "Christian Marriage Movement's Ground Zero". Retrieved 2008-09-19.
  39. ^ "Prop 8 supporters see surge in donations". Retrieved 2008-09-19.
  40. ^ "California's ballot battle over gay marriage shows US cultural divide". Retrieved 2008-09-17.
  41. ^ "Join No On Prop 8, Equality For All". Equality for All. Retrieved 2008-07-31.
  42. ^ "Vote No On Prop 8". Vote No On Prop 8. Retrieved 2008-09-21.
  43. ^ Allison Hoffman (2008-04-12). "Schwarzenegger: No to Marriage Amendment". Associated Press.
  44. ^ "Gov. Schwarzenegger Issues Statement on Today's State Supreme Court Ruling" (Press release). Office of the Governor of California. 2008-05-15.
  45. ^ Rojas, Aurelio (2008-07-01). "Obama rejects proposed California gay marriage ban". Sacramento Bee. {{cite news}}: Unknown parameter |retrieved= ignored (|access-date= suggested) (help)
  46. ^ Kapfer, William (2008-08-12). "Obama pledges equality for all". Washington Blade. {{cite news}}: Unknown parameter |retrieved= ignored (|access-date= suggested) (help)
  47. ^ "Pelosi Statement on California State Supreme Court Ruling on Gay Marriage" (Press release). House Speaker Nancy Pelosi. 2008-05-15.
  48. ^ "Feinstein opposes Prop 8". Bay Area Reporter. 2008-09-11.
  49. ^ Hemmelgarn, Seth (2008-09-11). "Feinstein silent on Prop 8". Bay Area Reporter. Retrieved 2008-09-17.
  50. ^ "Gavin Newsom Speaks on Prop 8". YouTube. Retrieved 2008-09-17.
  51. ^ "California's top Episcopal bishops oppose gay marriage ban". Los Angeles Times. 2008-09-11.
  52. ^ Tina Daunt (2008-09-18). "Brad Pitt donating $100,000 to fight gay marriage ban". Los Angeles Times.
  53. ^ Dan Morain and Jessica Garrison (2008-09-23). "Backers of California same-sex marriage ban are out-fundraising opponents".
  54. ^ Amar, Vikram David (2008-05-22). "The People of California Have the Power to Undo It By a Ballot Initiative Amending the State Constitution, But How Far Should That Power Extend?". FindLaw's Writ.
  55. ^ "Opposition to same-sex marriage ban grows". San Francisco Chronicle. 2008-09-18. Retrieved 2008-09-18. {{cite news}}: Check date values in: |date= (help)
  56. ^ "Most oppose bid to ban gay marriage in California, poll finds". Los Angeles Times. 2008-08-27. Retrieved 2008-08-30. {{cite news}}: Check date values in: |date= (help)
  57. ^ "Measure to prohibit gay unions is trailing". The San Diego Union-Tribune. 2008-07-18. Retrieved 2008-08-01. {{cite news}}: Check date values in: |date= (help)
  58. ^ "Field Poll: Majority of Californians now support gay marriage". Sacramento Bee. 2008-05-28. Retrieved 2008-08-01. {{cite news}}: Check date values in: |date= (help)
  59. ^ "Times Poll: Californians narrowly reject gay marriage". Los Angeles Times. 2008-05-23. Retrieved 2008-08-01. {{cite news}}: Check date values in: |date= (help)
  60. ^ a b "Can You Trust the Polling on Proposition 8?". The Advocate. 2008-09-23. Retrieved 2008-09-24. {{cite news}}: Check date values in: |date= (help)
  61. ^ http://www.mercurynews.com/breakingnews/ci_10497209
  62. ^ "Statement of Vote Cast on Ballot Measures" (PDF). California Secretary of State. 200-08-20. {{cite web}}: Check date values in: |date= (help)
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