Getting Prop. 8 Straight
Get the Law Straight Before You Vote on Prop. 8
What is Prop. 8? Prop. 8 is a proposition set for the California ballot this November during the general election. It specifically bans the right to same-sex marriage.
How does Prop. 8 work legally? Prop. 8 changes the California Constitution. Last spring, the Supreme Court ruled that banning same-sex marriage goes against our California Constitution, so Prop. 8 changes our constitution to permanently inscribe discrimination. However, even more importantly, Prop. 8 (and other propositions like it) chips away at the U.S. Constitution -- specifically the 14th Amendment right to equal protection under the law.
For this reason, Prop. 8 is a very dangerous thing. No matter what people think about gay marriage, if people really knew that this threatens equal protection in a broader way, more people would vote NO because most of us agree that equal protection is a good thing. Here's some more specific information:
1) Prop. 8 does not threaten the tax-exempt status of churches. (Prop. 8 doesn't touch on tax-exempt statuses. Further, the Constitutionally-guaranteed freedom of religion will continue to allow churches to choose how and who they will marry. For instance, the Catholic church has not lost its tax-exempt status even though it refuses to marry Jews and Protestants.)
2) Even though marriage is a state's rights issue, the CA court decided partially on equal protection grounds, which makes the same-sex marriage debate both a state and federal issue.
3) If Prop. 8 passes, here's what would likely happen:
a. A party or parties (probably a gay couple) would bring suit because they would not have the right to marry when other gay couples are legally married and do enjoy that right (via the June 17 - November 4 window of legality).
b. This may result in an ex post facto law that would retroactively nullify the valid same-sex marriages between June 17 and November 4th. (This kind of ex post facto law would be legally legitimate because it's civil, not criminal.)
c. If an ex post facto law results, another party (probably also a same-sex couple) would try to bring suit into federal court by claiming violation of equal protection, which could end up in the Supreme Court. (However, the Supreme Court would likely refuse to hear the matter because marriage is a state thing. This would, of course, leave the issue in limbo for a while.) Even if the Supreme Court did hear the matter, would we really want it deciding a state's right issue? This would be violative of the 10th Amendment, taking away the state's police powers and eroding federalism. Nevertheless, if this is an issue of equal protection, maybe it should be decided at the Supreme Court level. I don't know.
4) If Prop. 8 does not pass, we'll probably see propositions like it on every ballot for a long, long time (just like CA has seen propositions for "mandatory parental notification" with minors getting abortions on the ballot for at least the last 4 elections).
5) A "NO" vote on Prop. 8 means that organizations could not use the category of "marriage" as a vehichle for discrimination. For instnace, adoption agencies would not be able to discriminate against same sex couples. This is because normally, to skirt around the issue of sexuality, some adoption agencies may state that they prefer "married" couples. However, since only straight people have had the right to marry, adoption agencies have been able to discriminate against gays and lesbians (because they weren't married... because they couldn't marry). Now that gays and lesbians can marry, if adoption agencies were to discriminate, gay and lesbian married couples would have legal recourse because the agencies would be discriminating on the basis of sexual preference/orientation alone... and sexual orientation is a protected category in CA.
6) In this context, marriage is a civil issue, not a religious one. Since the government gives certain rights to straight married couples, and since gays and lesbians would not be allowed to marry if Prop. 8 passes, this is a matter of governmental discrimination---not a matter of churches being forced into participating in a non-government marriage ritual.
7) The right to same-sex marriage should be compared to anti-miscegenation laws.
8) Here are a few links regarding some of the above legal issues:
http://noonprop8.com/campaign_updates?id=0001 (a sort of myth vs. legal fact web page).
http://noonprop8.com/news/articles?id=0185 (companies profit from gay marriage; jobs created).
http://news.lavenderliberal.com/2008/08/30/six-big-lies-the-freedom-haters-are-spreading-about-proposition-8/ (this one is probably one of my favorite sites; lots of law and access to laws via direct links).
http://www.sos.ca.gov/elections/bp_11042008_pres_general/prop_8_titlesummary.pdf (prop 8 itself).
http://www.jimboland.com/2008/09/27/google-comes-out-against-anti-gay-california-proposition-8/ (great little article about anti-miscegenation laws... gives the landmark case and everything).
http://www.santacruzsentinel.com/ci_10627297?source=most_emailed (less about the law; just a short article that speaks to non-law people and their concerns).
Published by Jessie Zaylía
Jessie is a feminist attorney and scholar. She received her law degree from the University of San Diego School of Law. She has published 6 academic articles on a range of topics and has presented research... View profile
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39 Comments
Post a CommentThe primary function of the Supreme Court is to interpret whether or not laws are constitutional. During the civil rights movement, "the people" in the south "had spoken" and wanted to maintain segregation. The federal government had to step in to force intergration because segregation is both unconstitutional as well as a violation of basic human rights. "The people" do not have the right to pass laws which are unconstitutional or which violate the rights of others. This is why the state supreme court should and will over-ride prop. 8. I am sad that so many people in such a "progressive" state voted "yes", but confident that it will be overturned.
If your opinion is that "the people have spoken," I encourage you to soften your hearts, if you can, and read: http://www.associatedcontent.com/article/1184239/the_bittersweet_symphony_of_election.html?cat=17
Last night and this morning have been bitter-sweet. I'm elated that Obama will be our next president, and it makes me proud to have been a part of the movement. However, I'm simply devastated that Prop. 8 -- a proposition of ignorance, fear, and hate (no matter what proponents claim) -- passed. I'm disappointed in the many, many Californians who had the foresight and gumption to vote for Obama with one hand and for discrimination with the other.
I won't let any other negative comments to be posted on this page. Let me mourn in peace.
Now see how all the miss spelled words come out?How then do we teach others to do right when we can't see what we do?It is very importain for all of us to do what is right,The bible tells us not to do what we hate(dislike) then we will make someone angry.What you chose to do is who you are,I think family is the way i was shown,now if you teach it the way you see it,then it's all good,We should not be here.This is a way to keep people at odds hello! we need to be voting on city issues like rents,schools,crime,jobs,etc there is money being spent .One more then if you read the bible then really read it,the words there say alot more than most of you can see,and if you just like doing your own thing then don't be a follower or a bandwagan jumper!,don't just think about yourself, The bible tells you pride will bring you low
Hey people do you ever think that we are being pitted agasnt each other? Why do i have to tell you how i feel? if i beleave what you're doing isn't what i would do,then so what! i see you as a person,if you were dying then i because you are a friend i would help in some way,just the same if my friends who are like me have wifes or girlfriends Why is it so importance to be heard?We all have rights,it's how one chooses to use it,As children in california most drop out ohters score very low on tests,,maybe we should be trying to teach the children to read and write first before we start pushing our beleaves?from the bibles point of view it is prideful for us to bear children,we as adults think on our needs just like now is all about us.First a child needs to be embressed with understanding not force to comply.Again you are just people no more or less your rights as a man or woman is the same as mine,we should never have more than one type of rights ,skin,area,speech,etc dosent give a ri
But it surely doesn't mean I feel gays and lesbians are any less of a person. Just because I don't agree with someone doesn't mean I don't want to be around them. How else are we to learn about one another?
Jessica,
I'm sorry that you don't believe in your creator, I know he loves and believes in you. Your assumption of me NOT wanting to be with you in heaven is completely incorrect, I would love everyone there especially all of my gay and lesbian friends. Like the ones I've helped get their lives back on track by taking them in for several months and taking them to church with me. I believe in hating the sin not the sinner!
I believe gays and lesbians can get into heaven just like any other sinner on this earth, but they must know their creator first.
As for the example of the animals and children, I am stating the progression of the evolution of our society. The way you feel about having sex with animals is exactly how people 30 years ago felt about gays and lesbians having sex. So all I'm saying is be careful what you wish for!
I agree with Elliot Kim that the same sex tendencies are not the norm, we were created to bear fruit (children). But it surely doesn't mean I feel
Interesting. According to basic Christian dogma, God gives everyone the free choice to either accept or reject him. What in the world could possibly make a mere mortal think that they have the right to force God on other people when he does not do it himself? If you want to believe that gay marriage is wrong, a sin, that gay people will burn in hell, whatever, thats fine. You are free to believe this and teach this to your children. What you are not free to do is force your beliefs on other people. Gay couples have co-habitated for as long as there have been people, and having gay marriage legal will in no way increase the number of gay couples. Children will still have the same questions about same sex couples whether they are married or not. Acknowledging that something exists or that it is legal does not mean that you have to agree with it. Gays getting married also will not in any way effect heterosexual marriage, so prop 8 does absolutely nothing to "protect marriage" since marria
I was on the bus and I heard this gay guy say "Prop 8 isn't about gay marriage, it's about teaching it to kids in elementary school kids. We gay people already have the right to marry in California and that can't be taken away. Most people I know that come to my church, when they hear what prop 8 is really about they are surprised." A gay person voting for prop 8.... how authority misleads its followers.
Response to Elliot: I appreciate many of your comments. To clarify, I think that comparing homosexuality to a flawed biological mutation like a sixth toe is downright insulting... even though I'm sure you didn't mean it that way. If I said that being born with a propensity to believe in a god that doesn't exist was the result of a biological mutation or flaw, I think you would feel equally as insulted. However, I do appreciate how after all is said and done, you believe that the core tenets of Christianity are love and equality. -And, just as a side note, my rejection of religion is not based on people; it's an intellectual choice. Thank you for your comments.