California's Proposition 8

Never?

Sometimes?

Think you know the answer?

In May 2008, the California Supreme Court ruled in favor of same-sex couples having the right to marry and be recognized as married in the state. This decision, in effect, overruled Proposition 22 which passed in March 2000 by an overwhelming majority of 61% to 38% to keep the California definition of marriage as being between a man and a woman.

Insert uproar here. People everywhere are screaming that the courts are ignoring the voice of the people-a voice which spoke with strength and fervent, often religious, passion. They are angry. They are scared. They want everything to go back to the way it has been officially for over thirty years.

Have they a right to be angry? I don't think so.

Legal History of Same-Sex Marriage

1977: The California Legislature defines marriage as being between a man and a woman.

1996: President Bill Clinton signs the Defense of Marriage Act (DOMA) into law, saying that, for federal purposes, marriage is defined as a union between a man and a woman.

1999: California's AB 26 established a domestic partnership registry, which mostly extended health benefits to same-sex partners of state employees and the right of one member of the same-sex couple to visit the other in the hospital, barring reasonable limitations set forth by the hospital. It also allowed for the termination of said partnerships.

March 2000: Proposition 22 passes.

2003: California's Domestic Partners Rights and Responsibilities Act passed, extending "to registered domestic partners virtually all of the rights and responsibilities of marriage." Many people strongly opposed both measures passed in 1999 and 2003, fearing they were mere steps toward legalizing same-sex marriage. (UC Berkeley Institute of Governmental Studies, emphasis added)

February 2004: San Francisco Mayor Gavin Newsom spat in the face of what he deemed a discriminatory law and took the matter into his own hands by proclaiming same-sex marriage legal in San Francisco. Hundreds of couples descended into the city for the next month to take advantage of the controversial decision that ignored the statute Newsom described as "denial of equal protection under the California Constitution."

March 2004: The California Supreme Court called a halt to the marriages and said they would form a decision and rule on the matter themselves.

April 20, 2004: The California Assembly Judiciary Committee passed AB 1967 by a vote of 8-3, legalizing same-sex marriage in California. While the entire Assembly refused to pass the bill, the milestone of its passing through the Judiciary Committee did not go unnoticed by the people standing on both sides of the issue.

August 2004: The California Supreme Court deemed Newsom had gone outside the law, but did not answer Newsom's claim that the law was unconstitutional.

2005: AB 849, calling for the legalization of same-sex marriage throughout the state, passed through the Senate and the Assembly by a vote of 41-35. Governor Arnold Schwarzenegger decided, however, to veto the bill, believing it should be up to the courts to decide.

May 15, 2008: In a vote of 4-3, the courts finally ruled that banning same-sex marriage does go against the rights and privileges offered in the California State Constitution. Tim Rutten of the Los Angeles Times quoted Chief Justice Ronald M. George as writing "Our state now recognizes that an individual's capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual's sexual orientation."

Now everyone is shouting about the courts overruling the voice of the people that spoke back in 2000 with Proposition 22.

But that's not what happened. The Court said that the law banning same-sex marriage was unconstitutional. What Californians are facing come November 4, 2008 is the vote on whether or not to amend the state constitution to make Proposition 22 constitutional.

Proposition 8 Arguments and Rebuttals

Arguments on the side of Proposition 8 have abounded since the ruling, some consisting of stories that cast a dim shadow of the dire things same-sex marriage will bring to our society. Some of the following arguments are taken directly from an e-mail I recently received, others are arguments I've heard from various people over the years and my retorts to each.

Argument 1: Same-sex couples who are in a "civil union" or "domestic partnership" have all the rights of a married couple.

Not true. While the state might offer all benefits to its same-sex couples under a "civil union" or "domestic partnership," they are denied all federal rights and benefits. For example:

Taxes. While a same-sex couple can file joint state returns, they must file separately when it comes to their federal returns. Factcheck.org states "This may be advantageous for some couples, not so for others. One advantage for married couples is the ability to transfer assets and wealth without incurring tax penalties. Partners in a civil union aren't permitted to do that, and thus may be liable for estate and gift taxes on such transfers."

Health Insurance. If a health plan is governed by state law, then all benefits have to be extended to the same-sex partner. If they are governed by federal law, it is up to the employer to decide if the partner can share the benefits.

Social Security Benefits. Same-sex couples are not eligible.

Immigration. A foreign national is not allowed to become an American by entering a "civil union" with a person of the same sex.

Military Benefits. Only opposite-sex couples have the rights to pensions, compensation for service-related deaths, health care, housing, and the right to burial in veterans' cemeteries (factcheck.org)

As stated on factcheck.org, Brad Luna, director of communications at Human Rights Campaign, says "It's going to have to take the repeal of DOMA or a federal civil union law that would grant them that kind of federal recognition."

Argument 2: Children in public schools will have to be taught that same-sex marriage is just as good as traditional marriage.

I doubt anyone is going to force a teacher to openly advocate same-sex marriage. If anything, they will recognize to their classes that it is legal in California for a homosexual couple to marry. As it is, such a couple is allowed to enter into a domestic partnership or civil union. As it is, such a couple is allowed to enter into a domestic partnership or civil union, and in the end it's not much different by way of the fact that a same-sex couple lives together as a married couple would.

In the end, it is up to the parents to ensure their children are taught what they (the parents) believe.

Argument 3: It will lead to more government intrusion into private lives. A photographer in Albuquerque refused to photograph a lesbian couple's civil union ceremony. The New Mexico Human Rights Commission fined the photographer $6000 even though there were other photographers willing to accept the business. And this is in a state where same-sex marriage is still illegal.

First of all, if it is occurring where same-sex marriage is still illegal, there is the chance of it happening anyway.

I think the larger issue here is not discrimination (which is not monopolized by the homosexual crowd), but frivolous lawsuits. Not knowing the entire story, I can only say that if the couple was able to find someone else to perform the ceremony, then they should have used one of the other photographers.

There is also the question of "don't companies have the right to refuse service to anyone?" Not always. According to legalzoom.com, "The Federal Civil Rights Act guarantees all people the right to 'full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, without discrimination or segregation on the ground of race, color, religion, or national origin.'" This is possibly where the confusion and the lawsuit stems from, as the law does not mention discrimination based on sexual orientation. However, it also states "For the most part, courts have decided that the constitutional interest in providing equal access to public accommodations far outweighs the individual liberties involved" and, if there is "no legitimate business reason for the refusal of service...the discrimination [is] arbitrary and unlawful."

Argument 4: Churches will be sued over their tax-exempt status if they refuse to allow same-sex marriage ceremonies in their religious buildings open to the public. While pastors, priests, bishops, and rabbis may not be forced to conduct such marriages themselves, they will be required to allow such marriages in their chapels and sanctuaries. This will only lead to government forcing clergymen to officiate in all marriages. (emphasis added)

I believe the key phrase in this is the second sentence which states that nobody will be forced to bless such unions.

As far as forcing religious clergy to officiate over marriages of couples they don't want to, this isn't true now and it won't be true then. Today the Catholic Church routinely denies recognition of many marriages for various reasons. Likewise, pastors have the right to refuse to officiate over a marriage ceremony if he or she believes the couple is not ready for marriage or for any other reason. This will not change with the allowance of same-sex marriage.

Some contest this rebuttal, citing a 2004 case in British Columbia, Canada, where "provincial marriage commissioners must agree to perform civil marriages for homosexual couples" (The B.C. Catholic Newspaper). Canadian clergymen fear this is one of the last steps leading to the requirement of all to perform marriages for anyone under the threat of losing their license.

However, that is Canada, not the United States, and so far there is no reason to believe this will be the case in the United States of America.

Argument 5: Anti-discrimination regulations will become more important than religious beliefs. In Vista, California, a lesbian couple sued a doctor who refused to perform a requested artificial insemination because of the doctor's religious beliefs. Although another doctor offered to do the procedure, the California Supreme Court held unanimously that the "1^st Amendment's right to the free exercise of religion does not exempt defendant physician's here from conforming their conduct to the...anti-discrimination requirements."

According to Rutten, the Court's ruling only means that if a doctor performs a service, then he or she cannot deny that same service to a specific person or couple based on religious beliefs. He quotes, "The Supreme Court's ruling in the fertility clinic case simply means that if a physician routinely provides a service, he or she must provide it to all eligible patients without discrimination. That's because the practice of medicine is a business governed by the laws that regulate commerce. The clergy's exercise of its religious functions, in contrast, is wholly protected by the 1st Amendment."

Now, if the doctor didn't perform a service at all, such as abortion, because of religious beliefs, then said doctor would not be compelled or forced to perform the service on anyone.

Argument 6: Allowing homosexual couples to marry threatens the sacred family unit and society as a whole, going against what God has said in His Holy Bible.

So many people are using God in this argument against same-sex marriage, but in order to use God as a veritable defense, those they debate with must also believe in God or they are only preaching to the choir. If those who are against same-sex marriage are to get others on their side, they must stop with fear mongering and start with some real arguments-arguments with merit and substance, arguments that agnostics and atheists alike can relate with and understand. If people are to use this argument, they need to first convince others of the existence of God and then of His feelings against homosexuality. Not all religions or churches agree that God is against such things.

This argument also tends to raise the issue of whether or not a same-sex couple should raise children. That is another topic in and of itself, so I will not get into that here. Not yet.

Conclusion

There is no official stance on whether or not being homosexual is a choice or not, but it doesn't matter. As Americans, we all have the right, the privilege, to make our own choices. We need to ensure everyone has the same rights and leave the judgments up to God. If we could only learn to treat everyone the way we would want to be treated, then we could do away with so much of this. Same-sex marriage is not going to be the breakdown of our society: forgetting that we are all human and deserve to be treated as such, will.