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2008 California Proposition 8

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Proposition 8 is an initiative measure on the 2008 California General Election ballot titled Eliminates Right of Same-Sex Couples to Marry. If passed, the proposition would "change the California Constitution to eliminate the right of same-sex couples to marry in California." A new section would be added stating "only marriage between a man and a woman is valid or recognized in California."

The measure was originally submitted for the ballot by petitioners with the title "California Marriage Protection Act." The title and summary were revised by Attorney General Jerry Brown to more "accurately reflect the measure." The Superior Court of California ruled in favor of these changes, stating, "The 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."

History

Background

In its decision to expand the legal definition of marriage, the California Supreme Court recognized that marriage has always been defined as between and man a woman.

"From the beginning of California statehood, the legal institution of civil marriage has been understood to refer to a relationship between a man and a woman. Article XI, section 14 of the California Constitution of 1849 --- California's first Constitution --- provided explicit constitutional protection for a 'wife's separate property, and the marriage statute adopted by the California Legislature during its first session clearly assumed that the marriage relationship necessarily involved persons of the opposite sex." In re Marriage Cases (2008) 43 Cal. 4th 757, 792.

In 1999, the California Legislature introduced Assembly Bill 26 to give gay couples the right to enter civil unions with all the rights given to married couples. The bill became law as the California Domestic Partnership Act.

In 2000, voters passed with 61% of the vote, ballot initiative Proposition 22, to formally define marriage in California as being between a man and a woman, consistent with California law since 1849.

In 2004, a number of developments arose in the wake of Mayor Gavin Newsom's decision to perform same sex marriages in 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, 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, Governor Arnold Schwarzenegger again vetoed the Religious Freedom and Civil Marriage Protection Act.

From 2005 to 2007, various organizations attempted to place a constitutional amendment before voters that would prohibit same-sex marriages—and in some cases, domestic partnerships as well.

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. The court subsequently refused to issue a stay of its order.

As of June 17, 2008, marriage between individuals of the same sex is legal in the state of California but not in the vast majority of states. As the California Supreme Court recognized in its controversial decision, its ruling has no effect on federal law, which defines marriage as between a man and a woman. In re Marriages Cases (2008) 43 Cal. 4th 757, 807.

On Nov. 4, 2008, California voters will decide whether to amend the state Constitution to define marriage as between a man and a woman. If Proposition 8 succeeds, it will restore the legal definition of marriage that has been the law of California since statehood.

Initiatives

In late 2007 and 2008, at least four different groups sponsored new ballot initiatives for a constitutional amendment prohibiting same-sex marriages. The one that did obtain enough signatures, is the "California Marriage Protection Act" (officially titled the "Limit on Marriage" Constitutional Amendment by the California Attorney General), sponsored by ProtectMarriage.com. During the initiative process, what is now Proposition 8 had been assigned the number 07-0068. Among the individual sponsors is Gail Knight, the widow of Pete Knight, who sponsored Proposition 22. 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.

Proposed amendment

If passed, the amendment would override the ruling in In re Marriage Cases that struck down both the 1977 law and Proposition 22 for being unconstitutional. The Constitution, as amended, would add a new section (Section 7.5) to Article I, placing it between the state Equal Protection clause and nondiscrimination in business and the professions. This new section would read:

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

According to Joan Hollinger, a professor at the University of California, Berkeley, Boalt Hall School of Law, "Constitutional scholars agree that the amendment cannot be effective retroactively." The Williams Institute at the UCLA School of Law conservatively estimates that more than 11,000 same-sex couples have married in California between June 17 and September 17, 2008.

Ballot summary language

In November 2007, California Attorney General Jerry Brown prepared a title and summary for the signature-gathering petition that reads:

LIMIT ON MARRIAGE. CONSTITUTIONAL AMENDMENT. Amends the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local government: The measure would have no fiscal effect on state or local governments. This is because there would be no change to the manner in which marriages are currently recognized by the state.

After the measure qualified for the general election the Attorney General revised the descriptions of Prop. 8 for the upcoming Voter Information Guide. On July 22, the California Secretary of State made the proposed ballot information available for public review. The new ballot label (condensed version of the title and summary) reads:

ELIMINATES RIGHT OF SAME-SEX COUPLES TO MARRY. INITIATIVE CONSTITUTIONAL AMENDMENT. Changes the California Constitution to eliminate the right of same-sex couples to marry in California. Provides that only marriage between a man and a woman is valid or recognized in California. Fiscal Impact: Over next few years, potential revenue loss, mainly sales taxes, totaling in the several tens of millions of dollars, to state and local governments. In the long run, likely little fiscal impact on state and local governments.

Through a spokesperson, the Attorney General explained that "the change was necessary because of the dramatic turn of events that have taken place since the petitions were circulated: namely that the California Supreme Court legalized same-sex marriage and thousands of gay couples have since wed." The text of the actual proposed amendment has not changed.

Proposition 8 supporters immediately mounted a legal challenge to the changes, contending that Attorney General Brown had inserted "inflammatory" language that would "unduly prejudice voters against" Proposition 8. Protect Marriage claimed that research shows the attorney general has never used an active verb like “eliminates” in the title of a ballot measure in the fifty years in which ballot measures have been used. Opponents to the measure declared their support for the language, while representatives of the Attorney General vouched for the neutrality and accuracy of the language. On August 8, 2008, a judge turned down this legal challenge, affirming the new title and summary. Proponents of Prop. 8 immediately appealed the decision. The Court of Appeal denied their petition the same day, and they did not seek review by the Supreme Court of California. The phrase "Eliminates Right of Same–Sex Couples to Marry" is the official title only in the sense that it is the title prepared by the Attorney General for use in the Official Voter Information Guide; it is not the title of Proposition 8 itself. Section 1 of Proposition 8 itself provides the official title of the proposed constitutional amendment. That section, entitled "Title," reads as follows: "This measure shall be known and may be cited as the 'California Marriage Protection Act.'"

Legal challenges

  • On June 4, 2008, the California Supreme Court denied a petition to stay its order pending the November vote on Proposition 8.
  • On July 16, 2008, the California Supreme Court dismissed a motion for pre-election review of Proposition 8 which would determine whether it was a constitutional amendment or constitutional revision. Were the court to have found Proposition 8 to be a constitutional revision, it would have been removed from the ballot. The question of whether Proposition 8 is a constitutional amendment or constitutional revision remains unresolved.
  • On August 8, 2008, the Superior Court turned down a legal challenge aimed at reversing the renaming and rephrasing of the official Proposition 8 language.

Proposition 8 backers send "an outrageous attempt to extort people"

On October 22, a contributor who recently helped underwrite a San Diego event that raised money to defeat 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; and Andrew Pugno, general counsel for ProtectMarriage.com.

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."

Allegations of Violence

On October 13, Jose Nunez of Modesto, CA alleged that an opponent of Proposition 8 attacked and seriously injured him while he was distributing lawn signs in support of Proposition 8, following a confrontation over the signs. There were no witnesses to the incident, and no arrests have been reported. No on Prop. 8 campaign director Patrick Guerriero issued the following statement: "The No on Prop 8 campaign condemns violence of any sort. We are deeply concerned to hear the news of a lawn-sign incident that apparently involved the injury of one of the volunteers for the Yes on 8 campaign. This incident—or anything like it—should not be tolerated in any campaign."

Proponents and opponents

By Election Day, the measure's opponents and supporters expect to spend about $40 million. Volunteers on both sides will have spent thousands of hours getting their messages across to the state's 16.2 million registered voters. More than 9,500 people from all 50 states and the District of Columbia have contributed nearly $22 million to support or oppose the measure, while institutions have added another $7.8 million.

The largest mass lawn-sign planting in the history of California politics was planned for September 22nd, proponents were to have put up one million signs in yards around the state at 7:00am, but the signs, some of them outsourced overseas, did not all arrive in time for the September event. Ali Bay, spokeswoman for Equality California, which is coordinating the No on 8 campaign, said at the time, that her side had distributed about 60,000 lawn signs, all purchased "from a union shop in Kansas."

Proponents

The ProtectMarriage.com organization sponsored the initiative that placed Proposition 8 on the ballot and continues to support the referendum. Other notable supporters include Republican State Senator Tom McClintock and 20 other Republican State Senators and Assemblymembers.

Republican presidential nominee and U.S. Senator John McCain released the following statement of support for the proposed constitutional amendment:

I support the efforts of the people of California to recognize marriage as a unique institution between a man and a woman . I do not believe judges should be making these decisions."

Former Speaker of the House Newt Gingrich has released a video in which he emphasizes his support to "defend and protect marriage" and to "overrule the judges" by "vot yes on Proposition 8."

Religious organizations that support 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 Pastor Jim Garlow (head of Skyline Church in San Diego) and Pastor Miles McPherson (former San Diego Charger and head of the Rock Church in San Diego), American Family Association, Focus on the Familyand the National Organization for Marriage.

The California Catholic Conference has released a statement in support of the proposition. The Catholic Bishops of California have stated that "by drawing on the revelation of Scripture, the wisdom of Tradition, the experience and insights of holy men and women as well as on what can be known by reason alone," they have decided "that marriage is the ideal relationship between a man and a woman for the purpose of procreation and the continuation of the human race."

The Church of Jesus Christ of Latter-day Saints, or Mormon Church, has publicly supported the proposition and encouraged their membership to support it, by asking its members to donate money and volunteer time.

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

Professional skateboarders Brian Sumner and Christian Hosoi support the proposition and recorded video segments "encouraging to vote yes on proposition 8."

Professional football players Jacques Cisera and Mark Miller support the proposition and "marriage between a man and a woman."

The Asian Heritage Coalition held a rally in support of Proposition 8 in downtown San Diego on October 19, 2008. The people at the rally wore red shirts to show support for traditional marriage because red is considered good luck for marriages in China where brides often wear red. The coalition argued that "most Asians don't support same-sex marriage." Grace Lee, chairwoman of the coalition, said her group wanted to show people that Asians are very much interested in the passage of Proposition 8 based on their teaching and history of its cultures.

Opponents

Equality for All is the lead organization opposed to Proposition 8. They also run the NoOnProp8.com campaign.

Republican California Governor Arnold Schwarzenegger stated that although he has opposed and has twice vetoed legislative bills that would recognize same sex marriage in California, he is opposed to the initiative and other attempts to amend the state's constitution. Schwarzenegger released the following statement on May 15, 2008 regarding the ruling:

I respect the Court's decision and as Governor, I will uphold its ruling. Also, as I have said in the past, I will not support an amendment to the constitution that would overturn this state Supreme Court ruling.

Democratic presidential nominee and U.S. Senator Barack Obama said he supports extending "fully equal rights and benefits to same-sex couples under both state and federal law....And that is why I oppose the divisive and discriminatory efforts to amend the California Constitution, and similar efforts to amend the U.S. Constitution or those of other states". Barack Obama has stated he is "for civil unions and not for gay marriage" when civil unions confer the same rights and benefits as marriage. In addition, Barack Obama has stated, "I personally believe that marriage is between a man and a woman." Democratic vice-presidential candidate Joseph Biden called Proposition 8 "regressive" and "unfair" and said if he lived in California, he would vote against Proposition 8.

The U.S. House Speaker, California Representative (8th District), Nancy Pelosi and both of California's U.S. senators, Dianne Feinstein and Barbara Boxer, have voiced their opposition to Proposition 8, as have 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 have 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), The Fresno Bee, and the Daily News (Los Angeles). Other papers to have editorialized in opposition include The New York Times and La Opinión (Los Angeles).

The nonpartisan League of Women Voters of California opposes Proposition 8 because "no person or group should suffer legal, economic or administrative discrimination."

Google has announced their official corporate opposition to Proposition 8, viewing the question "fundamentally as an issue of equality."

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 voted overwhelmingly to oppose Proposition 8. Leaders of the Board of Rabbis of Southern California — with representatives from the Reconstructionist, Reform, Conservative and Orthodox movements — said they wanted to protect the civil rights of gay and lesbian couples. The resolution did not address the sanctity of gay marriage. Instead, it urged a no vote on Proposition 8 so that same-sex couples can continue to marry under civil law.

Jewish groups in the San Francisco Bay Area came together to present an event against Proposition 8. The September 17, 2008 event was presented by the Jewish Community Relations Council and the LGBT Alliance of the Jewish Community Federations of San Francisco, the Peninsula, Marin, and Sonoma Counties; the Jewish Community Federation of the Greater East Bay; and the Progressive Jewish Alliance. Other Jewish groups who sponsored the event and who oppose Proposition 8 include Kol Tzedek, Congregation Emanu-El, Keshet, Congregation Sha'ar Zahav, Kulanu, Nehirim, Congregation Shomrei Torah, Congregation Sherith Israel, Jewish Mosaic, National Council of Jewish Women, and Jews for Marriage Equality. The Anti-Defamation League also opposes Proposition 8.

David Knight, the openly gay son of the late state Senator William "Pete" Knight, who authored Proposition 22, and stepson of Gail Knight, a proponent of Proposition 8, said that he is "absolutely" opposed to Proposition 8.

The Los Angeles Unified School District Board of Education voted unanimously to oppose Proposition 8.

The California Teachers Association donated 1 million dollars to fight proposition 8. The donation was the largest contribution to the campaign from a labor union during the election -more than double the next highest donation.

Among those who have donated money to fight Proposition 8 are Steven Spielberg, Brad Pitt, T.R. Knight, Dana Delaney, Eric McCormack, Pete Wentz, and David Geffen.

Opinion polls

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

Date of opinion poll Conducted by Sample size (Likely Voters) In favor Against Undecided Margin of Error
12-19 October 2008 Public Policy Institute of California 1,186 44% 52% 4% 3%
15-16 October 2008 SurveyUSA 615 48% 45% 7% 4%
4-5 October 2008 SurveyUSA 670 47% 42% 10% 3.9%
23-24 September 2008 SurveyUSA 661 44% 49% 8% 3.9%
9-16 September 2008 Public Policy Institute of California 1,157 41% 55% 4% 3%
5-14 September 2008 The Field Poll 830 38% 55% 7% 3.5%
12-19 August 2008 Public Policy Institute of California 1,047 40% 54% 6% 3%
8-14 July 2008 The Field Poll 672 42% 51% 7% 3.9%
17-26 May 2008 The Field Poll 1,052 42% 51% 7% 3.2%
21-22 May 2008 Los Angeles Times/KTLA 705 54% 35% 11% 4%

Cultures of Influence

About 1,100 Asian-Americans in California were interviewed by telephone in eight languages from August 18, 2008 to September 26, 2008. The "National Asian American Survey - Asian Voters In California" was the largest scientific poll of Asian-American voters ever done — both nationally and in California. The poll found that 57 percent of Asian-Americans likely to vote in the election oppose Proposition 8 while 32 percent planned to vote for the measure. Eleven percent were undecided. "If there is one community that is extraordinarily sensitive to the dangers of the government treating one group differently than another, it would be the Asian-American community," said Steve Smith, manager of the statewide campaign opposing Proposition 8. Bill Tam of San Francisco, a Chinese-American who is leading the outreach effort in the Asian-American community to pass Proposition 8, "hope to convince Asian-Americans that gay marriage will encourage more children to experiment with the gay lifestyle and that the lifestyle comes with all kinds of disease."

African-Americans and Latinos are leaning toward support of Proposition 8. The October 17 poll indicated that 58 percent of African-American voters supported Proposition 8 versus 38 percent who opposed it. Among Latinos, 47 percent supported the proposition while 41 percent were opposed. White voters were evenly split.

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

References

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