Proposition 8: A Brief Overview

Introduction

Proposition 8 is one of the most widely publicized ballot initiatives in California history, and rightfully so; the proposition deals with the re-definition of society’s longest standing institution, the institution of marriage.

If you don’t live in California, you may not be familiar with the history of Proposition 8, the California Protect Marriage Amendment. This amendment is part of a conservative grassroots movement in California dedicated to protecting traditional marriage. The fight for traditional marriage in California actually began in the year 2000, when 61% of Californians voted that proposition 22, a statutory measure designed to protect traditional marriage, be added to California law. Proposition 22 lasted only eight years before activist judges on the California Supreme Court reviewed the constitutionality of Proposition 22. On May 15, 2008, in a narrow 4 to 3 vote, the Supreme Court of California ruled Proposition 22 unconstitutional. The court struck down the Prop 22 initiative, stating that the proposition somehow violated the “constitutional rights” of same-sex couples.

The people of California, outraged that activist judges had wrongfully over turned their vote, created an amendment to the California Constitution which would over ride the court‘s decision. Proposition 8, The California Marriage Protection Act, was created to restore the definition of marriage. Proposition 8, if passed, will over rule the Supreme Court and, "amend the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California." Twenty-seven states in the US have already added constitutional amendments similar to Proposition 8. (1)

Three Simple Effects

From its inception, Proposition 8 has claimed it will have three simple effects:

1. It restores the definition of marriage to what the vast majority of California voters already approved and what Californians agree should be supported, not undermined.
2. It overturns the outrageous decision of four activist Supreme Court judges who ignored the will of the people.
3. It protects our children from being taught in public schools that “same-sex marriage” is the same as traditional marriage, and prevents other consequences to Californians who will be forced to not just be tolerant of gay lifestyles, but face mandatory compliance regardless of their personal beliefs. (2)

The above-stated effects are simple and straight-forward. Proposition 8 supporters have joined forces with churches, spreading information about the amendment and urging both conservative and liberals alike to preserve the definition of marriage as between, “one man and one woman.“

Supporters of 8 have stated: “Proposition 8 is NOT an attack on gay couples and does not take away the rights that same-sex couples already have under California’s domestic partner law. California law already grants domestic partners all the rights that a state can grant to a married couple. Gays have a right to their private lives, but not to change the definition of marriage for everyone else.“ (3)

Though Proposition 8 supporters have repeatedly clarified their stance, gay rights advocates have taken offense to this simple amendment. The amendment has received heavy criticism and negative publicity by gay rights activists in California and across the country.

“Civil Rights” and “Discrimination”

Same-sex couples and others in California are fighting an intense war of words to defeat Proposition 8. Gay advocates claim that marriage is their constitutional civil right. Though same-sex couples in California have legal protection similar to marriage in the form of domestic partnership laws (which guarantee hospitalization, medical care, fair housing, employment rights, and other probate rights,) they are not satisfied with these partnerships. They claim they must have marriage rights to receive full protection under the law. They claim that disallowing gay couples the right to marry is unconstitutional.

“This amendment is all about equality“, one gay marriage advocate stated, “and the right to marry should be given to everyone, gay or straight.” Many gay marriage advocates claim that, “even if domestic partnerships were fully equivalent to marriage, separate but equal simply isn't the American way.” Same sex marriage proponents are asking, “Why does there have to be a separate civil institution for gay relationships when there already exists a perfectly good civil institution to which we currently have access?” (4)

Furthermore, gay marriage advocates have compared their fight against Proposition 8 to the civil rights movement of the 1960s. Proposition 8 has been likened to the Jim Crow laws of 1876. Many of these advocates site the constitution which states, “all men are created equal” and, “all are to receive equal treatment under the law,” arguing a ban on same-sex marriage is as discriminatory as racism. One gay advocate compared himself to Martin Luther King and cited King saying, “I may not get to the mountaintop myself… but we WILL get to that promised land.” (5)

This guilt tactic, calling supporters of traditional marriage “discriminatory,” has proven very affective in the fight against Proposition 8. Advocates of same-sex marriage have convinced many in California that a “yes” vote on Proposition 8 is synonymous with the terms, “hateful,“ “ignorant,” and “close-minded.” (6)Same-sex marriage advocates are campaigning this proposition as “discriminatory” in order to win the vote of otherwise conservative Californians. Attorney General Jerry Brown has even changed the name of the amendment on the ballot from “The California Marriage Protection Amendment” to “Eliminates Right of Same-Sex Couples to Marry Act.” (8)

The Truth Behind the Accusations

While calling traditional marriage advocates “discriminatory” may be an effective tactic, it is simply not true. Many supporters of traditional marriage believe homosexual behavior is wrong, however the expression of a belief or opinion is not synonymous with discrimination.

Lynn Wardle, Executive Council of the International Society of Family Law and member of the American Law Institute responded to the claims of same-sex marriage advocates who have called Proposition 8 “discriminatory.” Wardle explained that such arguments show a misuse of the term “discrimination.” He said, "By discrimination they (gay rights activists) mean discrimination in violation of public policy” He explains that the belief homosexual behavior is immoral does not discriminate in an illegal way or violate any civil rights. Furthermore, he states that currently, “there is no civil right to same-sex marriage," he says. "Discrimination on the basis of gender or on the basis of race is quite different from discrimination on the basis of sexual practices." (9)

To the proponents of gay rights who have compared themselves to blacks, Wardle explains their analogy is inexact. "Race is an immutable condition,” he says. “Homosexual acts involve behavior and choice. The most aggressive studies of homosexuality,” Wardle says, “have provided only thin evidence showing at most a predisposition for homosexual behavior, and environment has been shown to have a much larger effect than biology.” Furthermore, Wardle quoted Gen. Colin Powell who said, "Skin color is a benign non-behavioral characteristic. Sexual orientation is perhaps the most profound of human behavioral characteristics. Comparison of the two is a convenient but invalid argument." (10)

“The question,” Wardle says, “is whether there is a civil right to engage in homosexual activities and whether there is a right to have those activities given the status of marriage.” (11) That question will be answered on election day when Californians decide to either a. uphold the traditional definition of marriage, defined as “one man and one woman” or b. abandon the current definition of marriage; redefining the term to make same-sex marriage a civil right.

Advocates for traditional marriage, including religious organizations have the right to speak up on this issue without fear of discrimination litigation. The Alliance Defense Fund, a defender of Christian legal issues, states, “Churches and pastors must not allow the tactics of intimidation and intolerance to succeed in silencing their voices on the critical issues of our day.” (12)

Please see these links for more information:

1. US News: Decision on Gay Marriage Has Wide Impact
2. www.protectmarriage.com
3. www.protectmarriage.com
4. Conversation with Tom Bestor - See Comments
5. Conversation with Tom Bestor - See Comments
6. Conversation with Frank

8. www.ballotpedia.org
9. BYU Magazine: LAW PROFESSOR DEFENDS MARRIAGE IN SAME-SEX MARRIAGE BATTLE
10.BYU Magazine: LAW PROFESSOR DEFENDS MARRIAGE IN SAME-SEX MARRIAGE BATTLE
11. BYU Magazine: LAW PROFESSOR DEFENDS MARRIAGE IN SAME-SEX MARRIAGE BATTLE
12. Alliance Defense Fund