Rehrig, Clay

English

Loyola University Chicago, School of Law: LAW eCommons

Public Interest Law Reporter
Volume 14
Issue 2 Spring 2009 Article 7
2009
California Bans Gay Marriage by Simple Majority
Vote
Clay Rehrig
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Recommended Citation
Clay Rehrig, California Bans Gay Marriage by Simple Majority Vote, 14 Pub. Interest L. Rptr. 152 (2009).
Available at: http://lawecommons.luc.edu/pilr/vol14/iss2/7
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Loyola Public Interest Law Reporter
CALIFORNIA BANS GAY
MARRIAGE BY SIMPLE
MAJORITY VOTE
by CLAY REHRIG
2008 was a bittersweet year for the gay rights movement. The SupremeCourt of Connecticut granted same-sex couples the right to marry.1 Milk,
the blockbuster movie about a slain gay politician from San Francisco, gener-
ated immense media attention and was nominated for an Academy Award for
Best Picture.2 Most notably though, the Supreme Court of California extended
the fundamental right to marry to same-sex couples, only to have this right
trumped by a ballot initiative a few months later.3 Proposition 8, California’s
constitutional amendment to ban same-sex marriage, was approved by the vot-
ers of California on November 4 with 52 percent of the vote.4
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No. 2 • Spring 2009
A FUNDAMENTAL RIGHT RECOGNIZED
In 2004, Gavin Newsome, the mayor of San Francisco, spurred the same-sex
marriage battle when he began offering marriage licenses to same-sex couples
on the steps of San Francisco’s City Hall.5 Subsequently, the Supreme Court
of California intervened and ordered the city to stop issuing marriage licenses
to same-sex couples based on a 2000 California law, which restricted marriage
to a union between one man and one woman.6 However, the validity of this
law and the court’s order to halt the gay marriages prompted six same-sex
couples in California to file a law suit in the Supreme Court of California
alleging discrimination on the basis of sexual orientation.7
On May 15, 2008, these six couples finally received the recognition they were
seeking. In a 4-3 ruling, the California Supreme Court struck down the state’s
distinction between civil unions and marriages and ruled that homosexual
couples must be afforded the same right to marry already granted to heterosex-
ual couples.8 Further, it found that, in terms of judicial review, sexual orienta-
tion is a suspect classification similar to race or sex and now strict judicial
scrutiny must be used when rights are denied based on sexual orientation.9
Conservative and religious-affiliated groups denounced the decision, and in
response, collected enough signatures to place a constitutional amendment on
the ballot in the next election.10 The result was Proposition 8, which unequiv-
ocally prohibited a same-sex couple from marrying under the Constitution of
California.
. . . AND TAKEN AWAY
The battle over Proposition 8 was long and wrought with emotional entangle-
ments. Both supporters and opponents fought tough battles and endured the
other side’s blatant offensives. Proponents complained about the constant bar-
rage of names like “bigot” and “homophobe,” while opponents worried about
the religious condemnation paraded by the other side.11 Furthermore, it was
expensive. More than $70 million was raised for and against the measure, to-
taling more than all similar campaigns combined.12 In the end, the amend-
ment passed, banning same-sex marriages in the country’s largest state and
putting the validity of over 18,000 same-sex couples’ marriages in jeopardy.13
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Proponents of the ban view it as a legal means of protecting one of the basic
components of our society. Ed Vitagliano of the American Family Association
calls Proposition 8 “an important short-term measure” in the drive to maintain
traditional marriage.14 He explains that no matter what courts rule, two men
cannot marry, but these court rulings have a profound effect on the views of
people all over the country.15 For this reason, Vitagliano sees it as important
for the people to stand up, reassert their own values, and not let society be
dictated by judicial whim.16
Among those whose marriage is now uncertain is Todd Young, a Chicago na-
tive, who traveled to California to marry his long time partner on August 1,
2008. He recalled feeling “disbelief” when he woke up to the results the morn-
ing after the election.17 Now, with the legal status of his marriage undecided,
Young says this issue has become “a very emotional one.”18 Young explains that
over the years, as a member of the gay community, he had come to accept his
place in society as a second-class citizen. But for Young, the opportunity to
marry finally provided a sense of equality with the rest of society, only to have
it undermined by the emotional outcome of Proposition 8.19
Although devastating for Young and the 18,000 other recently married
couples, Jim Madigan, attorney and gay rights activist with Equality Illinois,
explains that Proposition 8 is not a complete overruling of the rights recog-
nized for gay couples.  In fact, its effect is rather narrow because it only takes
away the right to marry.20 Homosexuals remain a protected class, which was
the real bite of the Supreme Court’s judgment.21 Because the Court defined
homosexuals as an oppressed group, additional legislation based on sexual ori-
entation must now pass heightened judicial scrutiny, and this part of the
Court’s judgment will stand.22
The Supreme Court of California has agreed to hear a case challenging the
validity of Proposition 8 and the legal status of the 18,000 same-sex couples
who were married in California during the five months gay marriage was legal.
If Proposition 8 is upheld, it will reinforce the idea that the people of Califor-
nia can change their constitution by a simple majority vote, ensuring the mar-
riage ban will remain in place only until the voters decide to overturn it
through a similar ballot initiative in the future.
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No. 2 • Spring 2009
A MINORITY SUBJECTED TO THE WILL OF THE MAJORITY
The people of California voted and rejected gay marriage. Now the debate has
evolved into what happens when the majority elects to strip a minority group
of a recognized fundamental right. Gay activists have dubbed this fight “the
civil rights struggle of our generation.”23 Ironically, in the same election where
the first African-American was elected President, black voters overwhelming
supported the ban on a minority group’s rights.24 The silver lining, though, is
the Civil Rights Act of 1964, and the present activists’ persistence that equal
rights are not a matter of if but when.25 Similar to how the Civil Rights Act
elevated the status of all African-Americans and ended discrimination based on
race, the gay movement hopes that something similar will be implemented
regarding one’s right to marry regardless of sexual orientation. As one Illinois
legislator explains, “the tendency to do what is right over what is wrong, and to
expand individual’s rights rather than taking them away, always wins out in
the end.”26 Sooner or later rights for gays and lesbians will be recognized, just
like they were for the black community. And similar to what happened in
1964, progressive legislation should come first to protect a minority’s rights;
voters’ hearts and minds will follow.
Young believes that although his legal status might revert back from “married”
to “single,” he is emotionally no less married.27 He will continue to fight for
gay marriage, stating that “we have to claim this right so others can claim it
more easily.”28 In response to Young and to those 18,000 same-sex couples,
Vitagliano says, “they simply aren’t married.”29 He explains that “marriage can
only be between one man and one woman,” and for him, this traditional view
of marriage is important to defend, even if it means another constitutional
amendment.30
Galvanized by the passage of Proposition 8, the gay movement vows to con-
tinue this fight.
NOTES
1 Showdown; Proposition 8, ECONOMIST, Nov. 1, 2008, http://www.economist.com/world/
unitedstates/displayStory.cfm?story_id=12522924.
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2 Complete List of Academy Award Winners and Nominees, CNN.COM, Feb. 23, 2009, http://
www.cnn.com/2009/SHOWBIZ/Movies/02/22/oscar.nominees.full.list/index.html.
3 Jessica Garrison, Voters Approve Proposition 8 Banning Same-sex Marriages, L.A. TIMES, Nov.
5, 2008,  http://www.latimes.com/news/local/la-me-gaymarriage5-2008nov05,0,1545381.story.
4 Id.
5 Mayor Defends Same-sex Marriages, CNN.COM, Feb. 22, 2004, http://www.cnn.com/2004/
LAW/02/22/same.sex/index.html.
6 John Ritter, California Court Stops Gay Marriages, USA TODAY, Mar. 11, 2004, http://www.
usatoday.com/news/nation/2004-03-11-gay-marriage-calif_x.htm.
7 Id.
8 In re Marriage Cases, 183 P.3d 384 (Sup. Ct. 2008).
9 Interview with Jim Madigan, Interim Executive Director, Equality Illinois, in Chicago, Ill.
(Mar. 9, 2009).
10 Maura Dolan, California Supreme Court Overturns Gay Marriage Ban, LA TIMES, May 16,
2008, http://www.latimes.com/news/local/la-me-gaymarriage16-2008may16,0,6182317.story.
11 Joe Mozingo, Proposition 8 Supporters Vent Frustration over Continued Protests, LA TIMES,
Nov. 11, 2008, http://www.latimes.com/news/local/la-me-prop811-2008nov11,0,5752091.
story.
12 Showdown; Proposition 8, supra note 1.
13 Jessica Garrison, supra note 3.
14 Telephone Interview with Ed Vitagliano, Director of Research, American Family Assoc.
(Feb. 6, 2009).
15 Id.
16 Id.
17 Interview with Todd Young in Chicago, Ill. (Feb. 11, 2009).
18 Id.
19 Id.
20 Interview with Jim Madigan, supra note 9.
21 Id.
22 Id.
23 Deb Della Piana, The Greatest Civil Rights Battle of Our Generation, OPEDNEWS.COM,
Nov. 26, 2008, http://www.opednews.com/articles/The-greatest-civil-rights-by-Deb-Della-Pi-
ana-081124-884.html.
24 CNN.com, Exit Polls, Ballot Measures, http://www.cnn.com/ELECTION/2008/results/
polls/#val=CAI01p1 (last visited Apr. 3, 2009).
25 Interview with Jim Madigan, supra note 9.
26 Interview with Greg Harris, Illinois State Representative, in Chicago, Ill. (Mar. 27, 2009).
27 Interview with Todd Young, supra note 17.
28 Id.
29 Interview with Ed Vitagliano, supra note 14.
30 Id.
156
5
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California Bans Gay Marriage by Simple Majority Vote

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California Bans Gay Marriage by Simple Majority Vote

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