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Note: The Background, Proposal, and Fiscal Effect sections are taken from the LWVCEF In Depth publication, based in part on the Legislative Analyst’s Office analysis included in the Secretary of State’s official Voter Information Guide. BACKGROUNDIn March 2000, California voters passed Proposition 22, an initiative statute, that specified that “only marriage between a man and a woman is valid or recognized in California.” In May 2008, the California Supreme Court held, in In re Marriage Cases (2008) 43 Cal.4th 757, that the statute enacted by Proposition 22 (and other state statutes that describe marriage as being between a man and a woman) violated the equal protection and inalienable rights provisions of the California Constitution (Article 1, Sections 7 and 1, respectively). In its discussion, the Court compared the laws prohibiting same-sex marriage with previously-overturned laws that had prohibited interracial marriage, and held that the right to marry is a basic, constitutionally protected civil right. The Court also found that, although domestic partnerships confer on the participants virtually all of the benefits, privileges, responsibilities and duties afforded to married couples, the different designations “must be viewed as potentially impinging upon the constitutional right of same-sex couples to marry.” As a result of the Court’s ruling, same-sex couples have been allowed to marry in California since the ruling went into effect in June 2008. (Note: the following background material was drawn from the following sources: In re Marriage Cases (2008) 43 Cal.4th 757; Kenji Yoshino, Yale Law School Professor, Can California’s Same-Sex Marriages Be Saved?, Los Angeles Times, June 30, 2008; and Secretary of State Domestic Partners Registry website.) Current California law authorizes registered domestic partnerships. Under the California Domestic Partners Act, same-sex couples (and opposite-sex couples where one partner is over age 62) are allowed to register with the state as domestic partners. Domestic partnerships confer on the participants virtually all of the benefits and responsibilities afforded to married couples. The Supreme Court decision did not invalidate or change any of the statutes relating to domestic partnerships, and Proposition 8 would have no effect on those statutes. If Proposition 8 passes, the question will arise as to whether it can be overturned by the courts on the ground that it is unconstitutional. A constitutional amendment approved by the voters can be ruled unconstitutional. A constitutional provision can be held unconstitutional if the courts find that it violates the U.S. Constitution. For example, in the 1960s, both the California Supreme Court and the U.S. Supreme Court invalidated Proposition 14, a constitutional amendment passed by the voters which would have overturned the Rumford Act’s fair-housing laws. The courts found that the amendment violated the equal protection clause of the U.S. Constitution. In the 1990s, on the same grounds, both the Colorado Supreme Court and the U.S. Supreme Court overturned a voter-passed amendment to the Colorado Constitution that would have prevented local governments from enforcing policies prohibiting discrimination on the basis of sexual orientation. If Proposition 8 passes, and is not overturned by the courts, the same-sex marriages that were entered into since the California Supreme Court ruling went into effect in June 2008 may become null and void, since they would violate the letter of the law that “only marriage between a man and a woman is valid or recognized in California.” In order for the marriages to remain valid, the courts would have to rule that applying this measure retroactively would violate provision(s) of the U.S. Constitution, such as the due-process clause or equal protection clause of the 14th Amendment, or the provision of Article 1 that prohibits ex post facto laws. THE PROPOSALProposition 8 would amend the California Constitution by adding new Section 7.5 to Article 1, to specify that only marriage between a man and a woman is valid or recognized in California (essentially writing the language of Proposition 22 into the state Constitution). As a result, same-sex couples would no longer be allowed to marry in California, and same-sex marriages entered into in other jurisdictions would not be recognized in California. FISCAL EFFECTThe Legislative Analyst’s Office states that, because marriage between individuals of the same sex is currently valid in California, there would likely be an increase in spending on weddings by same-sex couples in California over the next few years. This would result in increased revenue, primarily sales tax revenue, to state and local governments By specifying that marriage between individuals of the same sex is not valid or recognized, this measure could result in revenue loss, mainly from sales taxes, to state and local governments. Over the next few years, this loss could potentially total in the several tens of millions of dollars. However, over the long run, this measure would likely have little fiscal impact on state and local governments. LEAGUE POSITIONS AND DISCUSSIONLWVUS Principles: The League of Women Voters believes that . . . no person or group should suffer legal, economic or administrative discrimination. The LWVUS Social Policy statement of position is to secure equal rights and equal opportunity for all; promote social and economic justice and the health and safety of all Americans. Under the LWVUS Equality of Opportunity position, the League supports equal rights for all regardless of sex. The League supports action to bring laws into compliance with the Equal Rights Amendment: a) to eliminate or amend those laws that have the effect of discriminating on the basis of sex; b) to promote laws that support the goals of the ERA. Under the LWVUS position on Individual Liberties, the League opposes major threats to basic constitutional rights. Discussion The LWVC opposed Proposition 22, Limit on Marriages, in 2000. That statute used the same wording (“Only marriage between a man and a woman is valid or recognized in California”) that Proposition 8 proposes to place in the state Constitution. The League participated in a successful lawsuit to retain the Attorney General’s title for Proposition 22, which made it clear that the proposition placed a limitation on marriage but did not define marriage. Proposition 22 passed, but it was recently overturned by the California Supreme Court’s decision, In re Marriage Cases, on May 15, 2008. In In re Marriage Cases (2008) 43 Cal.4th 757, the California Supreme Court declared that the right to marry is a fundamental constitutional right under the California Constitution. California is one of just two states in the country that gives full marriage rights to gay and lesbian couples–the other is Massachusetts. Under the federal Defense of Marriage Act signed in 1996, the federal government does not recognize these marriages or give the couples any federal rights associated with marriage. As a result of the Supreme Court’s decision, gay and lesbian couples are now entitled to a civil marriage, which is a contract entered into under state law, and thousands of couples have exercised that right since the ruling became effective. Because of the separation of church and state, religious groups and clergy are subject only to the guidelines of their own religion, although many now support civil marriages for all couples and some perform religious ceremonies as well. Prior to the court decision, California had extended many rights given to married couples to gay and lesbian couples who registered as domestic partners. As of April 2008, almost half of the state’s same-sex couples were registered domestic partners. However, inequities between domestic partnership and marriage remain. In addition, domestic partnerships may not be recognized when a couple travels out of state, and even if domestic partnership is recognized, the rights that go with it are vastly unequal from state to state. On the other hand, at least one state (New York) recognizes legal same-sex marriages from other states and more may follow suit. Marriage also provides same-sex couples with a status that is understood by society in a way that domestic partnerships are not. If Proposition 8 passes, rescinding the marriage rights of gay and lesbian couples will affect many families and children throughout the state. Same-sex couples live in every county in California and represent every racial and ethnic group. Nearly 30 percent are raising their own children (biological, stepchildren and adopted children). According to the U.S. Census, the children of lesbian and gay couples are more likely to be younger than five years old, adopted, and disabled than children of opposite-sex couples. All children are affected when their parents’ relationship is not accorded the same dignity and respect as the marriages of other parents in their communities. Without marriage, children may suffer if parents are not legally empowered to support and protect them because of inequalities in the law between marriage and domestic partnership, or if the family travels to a state where domestic partnership is weak or non-existent. Conversely, the concept of marriage, including parental rights and responsibilities, is well-understood and defined in family law. The rebuttal to the supporters’ argument was signed by Ellyne Bell, School Board Member, Sacramento City Schools; Rachael Salcido, Associate Professor of Law, McGeorge School of Law; and Delaine Eastin, former California State Superintendent of Public Instruction. The rebuttal to the opponents’ argument was signed by Dr. Jane Anderson, M.D., Fellow, American College of Pediatricians; Robert Bolingbroke, Council Commissioner, San Diego-Imperial Council, Boy Scouts of America; and Jeralee Smith, Director of Education/California, Parents and Friends of Ex-Gays and Gays (PFOX). Other organizations opposing Proposition 8 include the LWVC; ACLU of Northern California, San Diego and Imperial Counties, and Southern California; Equality California; California NAACP; California NOW; Marriage Equality USA; and many lesbian/gay/bisexual/transgender organizations at the local, state, and national level. Many religious groups also oppose Proposition 8, including the coalition California Faith for Equality; California Church IMPACT; and the Unitarian Universalist Legislative Ministry, CA. RESOURCESLinda Craig, LWVC Advocacy Director Julie Rajan, LWVC Social Policy Director Trudy Schafer, LWVC Senior Director for Program www.NoOnProp8.com and www.equalityforall.com Equality for All (coalition of organizations for No on 8) SUMMARY POINTS
get involvedConsider sending a letter to the editor of your local newspaper. Please adapt this letter to your own community and check your local paper’s word limit for published letters.
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