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Proposition 8 was a California State ballot proposition that would amend the state Constitution to restrict the definition of marriage to a union between a man and a woman. It would overturn a recent California Supreme Court decision that had recognized same-sex marriage in California as a fundamental right. The official ballot title language for Proposition 8 is "Eliminates Right of Same-Sex Couples to Marry." The entirety of the text to be added to the constitution is: "Only marriage between a man and a woman is valid or recognized in California."

The campaigns for and against Proposition 8 raised $35.8 million and $37.6 million, respectively, becoming the highest-funded campaign on any state ballot that day and surpassing every campaign in the country in spending except the presidential contest. The proponents argued for exclusively heterosexual marriage while claiming that failure to change the constitution would require changes to school curriculum and threaten church tax benefits. The opponents argued that eliminating the rights of any Californian and mandating that one group of people be treated differently from everyone else was unfair and wrong.

The vote was 52.4% in favor of Proposition 8 and 47.6% against, with a difference of just under 500,000 votes, although 2,738,695 absentee and provisional ballots remain to be counted.

Results

On the day after the election, the results remained uncertified. With 100% of precincts reporting, the vote was 52.5% in favor of Proposition 8 and 47.5% against, with a difference of about 505,000 votes; as many as 3 million absentee and provisional ballots remain to be counted. The organizers of the "No on Prop 8" campaign conceded defeat on November 6, issuing a statement saying, "Tuesday’s vote was deeply disappointing to all who believe in equal treatment under the law".

About 2,738,695 absentee and provisional ballots remain to be counted as of November 7, 2008, 4:43 pm PST.

Proposition 8

Choice	Votes	%
Yes	5,642,343	52.4
No	5,145,375	47.6
Total votes	10,787,718	100.00

The California Secretary of State will publish the official final election results on December 9, 2008. Certification of the results, in theory, will result in a change to California law, retroactive to November 5, restricting marriage rights to opposite-sex couples only.

Uncertainty and challenges

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Before the election some California county clerks announced that because it usually takes a month for election results to be certified as final, they did not plan to stop issuing marriage licenses to same-sex couples until they were directed by the state health department, which oversees marriage records. However, many counties, including Los Angeles, Yolo, Kern, Sonoma, San Diego, San Bernardino, and Tuolumne, stopped issuing marriage licenses to same-sex couples on November 5, 2008, the day after the election.

Following the passing of Proposition 8, mass protests took place across the state. Santa Monica Boulevard was closed as 1,000 protesters gathered outside a temple of the Mormon Church in Westwood; the LDS (Mormon) Church was a proponent of the proposition. Additionally, demonstrators marched through Hollywood, blocking traffic and forcing police intervention. In Sacramento, the state's capital, nearly one thousand protesters peacefully gathered for a candlelight vigil in front of the Sacramento Gay and Lesbian Center. 300 more marched through the streets with protest signs. In San Francisco, thousands gathered in front of the City Hall to protest the proposition and to perform a candlelit vigil. Speakers who voiced their opinion in opposition of Proposition 8 included state senator Mark Leno and mayor Gavin Newsom.

On November 5, 2008, three lawsuits were filed, challenging the validity of Proposition 8 on the grounds that revoking the right of same sex couples to marry was a constitutional "revision" rather than an "amendment", and therefore required the prior approval of 2/3 of each house of the California State Legislature. Plaintiffs in the various suits included same-sex couples who had married or planned to marry in the cities of San Francisco and Los Angeles and the county of Santa Clara. Claims made on similar grounds with respect to other constitutional changes have in some cases taken years to be adjudicated, and almost all have failed.

Another pending legal issue is whether approximately 18,000 same-sex marriages already in effect would be retroactively annulled by the constitutional change, or whether they would be preserved. California Attorney General Jerry Brown said that existing same-sex marriages would be unaffected, but other legal experts have said challenges are likely.

History of marriage in California

1850–1977: Gender-neutral statutory language

In 1850, California's marriage statutes used gender-neutral language, without reference to "man" or "woman," in providing that marriage is a personal relation arising out of a civil contract to which the consent of the parties capable of making the contract is necessary. While California did not explicitly define marriage as being between a man and a woman, court decisions and some statutes dating from both statehood and the 1872 codification of the civil law assumed as much.

In 1948, the California Supreme Court recognized marriage as a fundamental right when it became the first state court in the country to strike down a law prohibiting interracial marriage. The California Supreme Court held that:

Marriage is thus something more than a civil contract subject to regulation by the state; it is a fundamental right of free men. There can be no prohibition of marriage except for an important social objective and by reasonable means. No law within the broad areas of state interest may be unreasonably discriminatory or arbitrary.... The right to marry is as fundamental as the right to send one’s child to a particular school or the right to have offspring. Indeed, “We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race.” (Skinner v. Oklahoma, supra, at p. 541.) Legislation infringing such rights must be based upon more than prejudice and must be free from oppressive discrimination to comply with the constitutional requirements of due process and equal protection of the laws.

1977–2008: Opposite-sex marriage

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". In 2007, the legislature commented that the gender-specific description of marriage "specifically discriminated in favor of heterosexual couples and discriminated against, and continues to discriminate against, same-sex couples."

In 2000, voters passed ballot initiative Proposition 22 with 61% of the vote, which added a section to the California Family Code to formally define marriage in California as a union between a man and a woman.

1999–2003: Development of domestic partnerships

In 1999, Assembly Bill 26 passed and marked the first time a state legislature created a domestic partnership statute without the intervention of the courts.

In 2003 with the passage of The California Domestic Partner Rights and Responsibilities Act (AB 205) the legislature shifted its approach to domestic partnerships. Earlier efforts afforded domestic partners only certain enumerated rights, which the legislature expanded in piecemeal fashion. This bill created the presumption that domestic partners were to have all of the rights and responsibilities afforded spouses under state law.

The bill did carve out certain exceptions to this premise, principally involving the creation and dissolution of domestic partnerships and certain tax issues. It also, for the first time, recognized similar relationships, such as civil unions, created in other states. Because the legislation dramatically changed the circumstances of existing domestic partnerships, the legislature directed the Secretary of State to inform all previously registered domestic partnerships of the changes and delayed the effect of the law for an additional year, until January 1, 2005.

2004–2007: Attempts to attain recognition for same-sex marriages

In 2004, a number of developments arose in the wake of Mayor Gavin Newsom's decision to authorize the issuance of marriage licenses to same-sex couples by the City and County of San Francisco. The 3,995 marriages were annulled by the California Supreme Court, but San Francisco began a legal challenge that was consolidated with other cases as In re Marriage Cases.

In 2005 the California state legislature passed the Religious Freedom and Civil Marriage Protection Act which would have recognized same-sex marriage in California. Governor Arnold Schwarzenegger vetoed the Religious Freedom and Civil Marriage Protection Act. The Act marked the first time that a state legislature had approved a bill authorizing same-sex marriage without a court order. Schwarzenegger press secretary Margita Thompson said, “he governor believes the matter should be determined not by legislative action – which would be unconstitutional – but by court decision or another vote of the people of our state.”

In 2007, Schwarzenegger again vetoed the Religious Freedom and Civil Marriage Protection Act.

2005–2008: Initiatives to forbid recognition of same-sex marriage in the state constitution

From 2005 to 2008, opponents of same-sex marriages introduced several attempts to place a constitutional amendment before voters that would prohibit recognition of same-sex marriages—and in some cases, domestic partnerships as well.

On April 27, 2005, ProtectMarriage.com announced that it will work to place a constitutional amendment on the June 2006 ballot to define marriage as an institution between a man and a woman.

In December 2005, ProtectMarriage.com failed to submit enough signatures to place a constitutional marriage amendment on the ballot. ProtectMarriage.com announced it had fallen short of the 600,000 signatures required to place the amendment on the June 2006 ballot, the group collected roughly 250,000 signatures.

On October 1, 2007, ProtectMarriage.com filed the initiative that became Proposition 8; its initial proposed title submitted by proponents was the "California Marriage Protection Act."Among the individual sponsors is Gail Knight, the widow of Pete Knight, who sponsored Proposition 22. The fourteen-word, operative text of Proposition 22 was identical to the operative text of Proposition 8, with the only difference being that while Proposition 8 proposes to add the words "only marriage between a man and a woman is valid or recognized in California" to the state constitution, Proposition 22 incorporated that same sentence into a statute (which was subsequently overturned by the state Supreme Court). A state constitutional amendment cannot be overturned by the state Supreme Court.

On November 29, 2007, the California Attorney General titled the initiative "Limit on Marriage. Constitutional Amendment." and assigned it Initiative Number 07-0068.

In late 2007 and 2008, at least four different groups sponsored ballot initiatives for a constitutional amendment prohibiting same-sex marriages. 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.

2008: California recognizes same-sex marriages

On May 15, 2008 the California Supreme Court, by a vote of 4–3, ruled that the statute enacted by Proposition 22 and other statutes that limit marriage to a relationship between a man and a woman violated the equal protection clause of the California Constitution. It also held that individuals of the same sex have the right to marry under the California Constitution.

On June 4, 2008, the California Supreme Court denied a petition to stay its In re Marriage Cases order pending the upcoming vote on Proposition 8. As of June 17, 2008, marriages between individuals of the same sex were considered valid and recognized in the state of California. A UCLA study estimated that 18,000 same-sex couples married between then and early November, 2008.

History of the ballot initiative

In order to qualify for the ballot, Proposition 8 needed 694,354 valid petition signatures, equal to 8% of the total votes cast for governor in the November 2006 General Election. The initiative proponents submitted 1,120,801 signatures, and on June 2, 2008 it qualified for the November 4, 2008 election ballot through the random sample signature check.

The ballot measure was an amendment that would override portions of the ruling in In re Marriage Cases, which struck down both the 1977 law and Proposition 22 for being unconstitutional. The Constitution, as proposed by the measure, would include a new section (Section 7.5) to Article I, placing it between the state Equal Protection clause and nondiscrimination in business and the professions. The new section reads:

Only marriage between a man and a woman is valid or recognized in California.

California's State Constitution puts the measure into immediate effect on November 5, the day after the election.

Changes to ballot title and summary

The measure was originally submitted for the ballot by petitioners with the title "California Marriage Protection Act."

In November 2007, California Attorney General Jerry Brown prepared the title and summary for the signature-gathering petition designating the initiative "Limit on Marriage. Constitutional Amendment".

After the measure qualified for the general election the Attorney General revised title to "Eliminates Rights of Same-Sex Couples to Marry. Initiative Constitutional Amendment", and rewrote the summary to say that it "Changes the California Constitution to eliminate the right of same-sex couples to marry in California". The Attorney General explained that the change was in response to the state supreme court ruling and to more "accurately reflect the measure." In rejecting a challenge to the change the Superior Court of California ruled that the change was valid because it did in fact eliminate a right that the California Supreme court had upheld.

Early legal challenges

On July 16, 2008, the California Supreme Court denied, without comment, a petition calling for the removal of Proposition 8 from the November ballot on the grounds it was a constitutional revision that only the Legislature or a constitutional convention could place before voters. Opponents also argued that the petitions circulated to qualify the measure for the ballot inaccurately summarized its effect. The court denied the petition without comment. As a general rule, it is improper for courts to adjudicate pre-election challenges to a measure's substantive validity. (Costa v. Superior Court (2006) 37 Cal.4th 986, 1005-1006.) The question of whether Proposition 8 is a constitutional amendment or constitutional revision remains unresolved, and a new petition arguing that Proposition 8 is a revision was filed by civil rights groups on November 5, 2008.

On July 22, 2008, Proposition 8 supporters mounted a legal challenge to the revised ballot title and summary, contending that Attorney General Brown had inserted "inflammatory" language that would "unduly prejudice voters against" Proposition 8. Supporters claimed that research showed the attorney general had never used an active verb like “eliminates” in the title of a ballot measure in the past fifty years in which ballot measures have been used. Representatives of the Attorney General produced twelve examples of ballot measures using the word "eliminates" and vouched for the neutrality and accuracy of the ballot language.

On August 8, 2008, the California Superior Court turned down the legal challenge, affirming the new title and summary, stating, "he title and summary is not false or misleading because it states that Proposition 8 would 'eliminate the right of same-sex couples to marry' in California. The California Supreme Court unequivocally held that same-sex couples have a constitutional right to marry under the California Constitution." That same day, proponents of Prop. 8 filed an emergency appeal with the state appeals court. The Court of Appeal denied their petition later that day and supporters did not seek a review by the Supreme Court of California. August 11, was the deadline for court action on the wording of ballot summaries and arguments in the voter pamphlet.

While turning down the challenge to the title and summary, the California Superior Court also found that the Yes on 8 campaign had overstated its ballot argument on the measure's impact on public schools and ordered a minor change in wording. The original arguments included a claim that the Supreme Court's legalization of same-sex marriage requires teachers to tell their students, as young as kindergarten age, that same-sex marriage is the same as opposite-sex marriage. The court said the Yes on 8 argument was false because instruction on marriage is not required and parents can withdraw their children. The court said the ballot argument could be preserved by rewording it to state that teachers "may" or "could" be required to tell children there is no difference between same-sex and opposite-sex marriage.

Protectmarriage.com letter to Equality California donors

On October 22, a contributor who recently helped underwrite a San Diego event that raised money to oppose Proposition 8 received a letter from ProtectMarriage.com, proponents of Proposition 8, demanding a donation of at least $10,000. The letter requested that the recipient "withdraw its support of Equality California," the organization that is part of the campaign against Proposition 8, and threatened to publish the names of companies and organizations that supported Equality California but "chose not to donate in like manner to ProtectMarriage.com."

Were you to elect not to donate comparably, it would be a clear indication that you are in opposition to traditional marriage. You would leave us no other reasonable assumption. The names of any companies and organizations that choose not to donate in like manner to ProtectMarriage.com but have given to Equality California will be published. It is only fair for Proposition 8 supporters to know which companies and organizations oppose traditional marriage.

The letter was signed by Ron Prentice, the campaign chairman for Yes on Prop 8; Edward Dolejsi, executive director of the California Catholic Conference; Mark Jansson, an executive committee member of ProtectMarriage.com; and Andrew Pugno, general counsel for ProtectMarriage.com.

When asked whether ProtectMarriage.com planned to name businesses that have supported the No on 8 campaign, Prentice initially said he was unaware of any such effort. "I'm not familiar of any organized attack against organizations that have given to No on 8," he said. But when asked about the letters, Prentice confirmed they were authentic. A ProtectMarriage.com spokeswoman estimated that 36 companies were targeted for the letter.

The executive director of Equality California, Geoffrey Kors, said that two other business owners had also received the letter, saying, "It's truly an outrageous attempt to extort people."

Campaign spending

By Election Day, volunteers on both sides spent thousands of hours getting their messages across to the state's 17.3 million registered voters. The campaigns for and against Proposition 8 raised $35.8 million and $37.6 million, respectively. Contributions totaled over $73 million with campaign contributions from over 64,000 people in all fifty states and more than twenty foreign countries, setting a new record nationally for a social policy initiative and trumping every other race in the country in spending except the presidential contest. Contributions were much greater than those of previous same-sex marriage initiatives. Between 2004 and 2006, 22 such measures were on ballots around the country, and donations to all of them combined totaled $31.4 million, according to the nonpartisan National Institute on Money in State Politics.

Proponents

The ProtectMarriage.com organization sponsored the initiative that placed Proposition 8 on the ballot and continues to support the measure.

Republican presidential nominee and U.S. Senator John McCain released a statement of support for the proposed constitutional amendment. Former Speaker of the House Newt Gingrich released a video in support. Both characterized the court ruling as being against the will of the people. Other notable supporters include Republican State Senator Tom McClintock and 20 other Republican State Senators and Assemblymembers.

Religious organizations that supported Proposition 8 include the Roman Catholic Church, Knights of Columbus, Union of Orthodox Jewish Congregations of America, The Church of Jesus Christ of Latter-day Saints , a group of Evangelical Christians led by Jim Garlow and Miles McPherson, American Family Association, Focus on the Familyand the National Organization for Marriage. Rick Warren, pastor of Saddleback Church, California's largest, also endorsed the measure. The Bishops of the California Catholic Conference released a statement supporting the proposition. The Church of Jesus Christ of Latter-day Saints (Mormons) publicly supported the proposition and encouraged their membership to donate money and volunteer time. The First Presidency of the church announced its support for Proposition 8 in a letter read in every congregation. Latter-day Saints provided a significant source for financial donations in support of the proposition, both inside and outside the State of California. About 45% of out-of-state contributions to ProtectMarriage.com came from Utah, over three times more than any other state.

The Grossmont Union High School District in San Diego County, California publicly voted on a resolution endorsing Proposition 8. The Governing Board voted 4-0 to endorse the amendment of the California State Constitution.

The Asian Heritage Coalition held a rally in support of Proposition 8 in downtown San Diego on October 19, 2008.

Opponents

Equality for All was the lead organization opposed to Proposition 8. They also ran the NoOnProp8.com campaign. The nonpartisan League of Women Voters of California opposes Proposition 8 because "no person or group should suffer legal, economic or administrative discrimination."

Republican California Governor Arnold Schwarzenegger stated that although he opposed and twice vetoed legislative bills that would recognize same sex marriage in California, he respects and will uphold the court's ruling and opposes the initiative and other attempts to amend the state's constitution. While a Democratic presidential nominee and U.S. Senator, Barack Obama stated that he personally considers marriage to be between a man and woman, and supports civil unions that confer comparable rights rather than gay marriage, he stated that he opposed the proposition and other attempts to amend the federal and state constitutions. Democratic vice-presidential candidate Joseph Biden opposed the proposition. The U.S. House Speaker, California Representative (8th District), Nancy Pelosi along with twenty other members of the 53 member California congressional delegation and both of California's U.S. senators, Dianne Feinstein and Barbara Boxer, voiced their opposition to Proposition 8, as did the Lieutenant Governor, State Controller, 42 of 80 members of the state assembly, 20 of the 40 state senators and the mayors of San Francisco, Los Angeles, and San Diego: Gavin Newsom, Antonio Villaraigosa, and Jerry Sanders respectively.

All ten of the state's largest newspapers editorialized against Proposition 8: the Los Angeles Times, the San Francisco Chronicle, the San Diego Union-Tribune, The Orange County Register, The Sacramento Bee, the San Jose Mercury News, the Contra Costa Times, The Press-Enterprise (Riverside-San Bernardino), The Fresno Bee, and the Daily News (Los Angeles). Other papers to have editorialized in opposition include The New York Times, La Opinión (Los Angeles), and The Bakersfield Californian.

A coalition of Silicon Valley executives urged a 'No' vote on Proposition 8. Google officially opposed Proposition 8 "as an issue of equality." Apple Inc. also opposed Proposition 8 as a "fundamental" civil rights issue, and donated $100,000 to the No on 8 campaign. Biotech leaders warned of potential damage to the state's $73 billion industry, citing Massachusetts as a top competitor for employees.

All six Episcopal diocesan bishops in California jointly issued a statement opposing Proposition 8 on September 10, 2008. Southern California's largest collection of rabbis, the Board of Rabbis of Southern California, voted to oppose Proposition 8. Other Jewish groups who opposed Proposition 8 include Jewish Mosaic, the American Jewish Committee, Progressive Jewish Alliance, National Council of Jewish Women, and the Anti-Defamation League.

The Los Angeles Unified School District Board of Education voted unanimously for a resolution to oppose Proposition 8. The California Teachers Association donated one million dollars to fight Proposition 8. Chancellor Robert Birgeneau of UC Berkeley urged a vote against the measure, claiming a likely threat to California's academic competitiveness if Proposition 8 is passed.

Many members of the entertainment industry were opposed to Proposition 8.

Opinion polls

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

Cultures of influence

A survey from August 18 to September 26, 2008 found 57% of Asian-Americans were likely to vote in the California election opposed to Proposition 8, 32% in favor, and 11% undecided. Steve Smith, manager of the statewide campaign opposing Proposition 8, explained the results as a matter of Asian-American sensitivity to unequal government treatment.

African American voters played a crucial role in the outcome. An exit poll of California voters showed that black voters sided in favor of the measure by margins of more than 2 to 1. Not only was the black vote weighted heavily in favor of Proposition 8, but black turnout -- spurred by Barack Obama's campaign for president -- was unusually large, making up roughly 10% of the voters. An October 17 poll indicated that 58% of African-American voters supported Proposition 8 versus 38% who opposed it. Among Latinos, 47% supported the proposition while 41% were opposed. The Field Poll released on October 31, 2008, however, showed support for Proposition 8 shrinking to 49% among African-American voters, and 46% among Latino voters. White voters, meanwhile, were 50% against Proposition 8 and 44% in favor of it.

The Field Poll released on October 31 indicated that, in the following categories, more people were opposed to Proposition 8 than in support of it: precinct voters, registered Democrats, nonpartisan voters, people who preferred Obama as a presidential choice, coastal inhabitants, people who identified as moderate or liberal, men, women, people under 65, Whites, Latinos, Asians, people who had some post-secondary education, college graduates, Catholics, non-Christians, people not affiliated with a religion, and those personally familiar with gays and lesbians. 73% of pollees who chose Barack Obama as their preferred President were against Proposition 8. Overall, 49% of the pollees were against the proposition, 44% were for it, and 7% were undecided.

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. This is due in part to social desirability bias, where voters tell pollsters what they think the pollsters want to hear. The magnitude of such an effect is hotly contested.

In the 2000 primary election, Proposition 22 passed with a margin eight points greater than predicted by one polling organization. The Field Poll immediately prior to the election showed 53% of likely voters in favor. Other polls conducted in the same month showed 57% of voters supported the measure. 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). 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.

See also

• Arizona Proposition 102 (2008)
• Briggs Initiative
• California state elections, November 2008
• Florida Amendment 2 (2008)
• Same-sex marriage in California

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External links

• California Official Voter Information Guide on Proposition 8, Title and summary, analysis, arguments and rebuttals, and the text of the proposition.
• ProtectMarriage.com, organizational sponsor of Proposition 8
• No On Prop. 8, official website against Proposition 8
• Scan of Initiative from California Attorney General website
• S147999 The full text of S147999, the decision from the California Supreme Court, May 15, 2008
• REPLY Reply Brief in BENNETT v. BOWEN (HOLLINGSWORTH) S165420
• Official Proposition 8 Campaign Finance The official source from the California Secretary of State
• Proposition 8 Support and Opposition Financial Contributions
• Tracking the money

• Current events from November 2008
• California ballot propositions, 2008
• Same-sex marriage in the United States
• LGBT law in the United States
• LGBT rights in California