Election 2008

George Nikitin/AP
Robert Kraynak participates in a candlelight vigil in San Francisco protesting the Election Day
passage of California’s Proposition 8.

California High Court to Hear Proposition 8 Challenge

November 20, 2008 03:26 PM
by findingDulcinea Staff
A ban on gay marriage, which California voters approved earlier this month, will stand, though the state’s Supreme Court has agreed to consider a challenge.

Controversial Proposition Moves from People to Judiciary

The California Supreme Court’s Thursday announcement that it would consider Proposition 8 was welcomed by both sides. 

Andrew Pugno, counsel for the ban’s supporters, told Reuters the challenge was a “long shot.” Overturning Proposition 8, he said, “would be a radical departure from 150 years of precedent,” he said.

But Shannon Minter, legal director for the National Center for Lesbian Rights, told Reuters Proposititon 8 “mandates discrimination.”

“I really can’t imagine a more serious issue before the court, or a more frightening one,” Minter added.

No date has yet been set for the court to hear oral arguments, but according to Reuters, it could be before March.

According to the news service, what will be at issue before the court is, “the amendment process, the effect of Proposition 8 on same-sex marriages before the election, and on whether the amendment violated the state’s separation-of-powers doctrine.”

The ban, and the efforts of its supporters and opponents, garnered national attention in the weeks before and since Election Day. Since the ban was passed by a narrow margin on Nov. 4, protests have been held throughout California, and ban opponents have published “blacklists” of those who gave money in support of the ban and called for boycotts of those businesses.

Background: Efforts to legalize gay marriage in California

After the California Supreme Court in May overturned a state ban on gay marriage, local courts began preparing for an anticipated influx of couples seeking licenses. California had previously allowed for same-sex partnerships, but gay couples across the board felt that the specific right to marry was essential. Gay rights advocates believed that California could lead the country in term of setting a standard for gay rights. But those opposing the ban also had a strong attachment to the word “marriage,” and as local courts began bolstering staff and resources to perform marriages, opponents put extra energy into garnering support for proposition 8.

Not all courts reacted with swift enthusiasm to the court’s decision. Kern County Clerk Ann Barnett made the decision to stop performing marriages altogether. She stated publicly that her office no longer had the resources to perform marriage, but her openly conservative leanings led most speculators to infer otherwise. One of her staff members revealed that Barnett expected to be sued for her decision.

Then, shortly after the Election Day defeat, it looked like California officials were devising ways to get the ban reversed, but the right approach was a delicate matter. Slate reported that legally filing for reversal can only happen on a federal level, which would bring the subject of gay marriage to the U.S. Supreme Court of the United States. That would likely take some years to accomplish. Meanwhile, there is concern about immediate fate of gay marriages in California.

It’s certain that no further gay marriages can be legally performed there until the ban is lifted, but there are 16,000 gay couples who have been married in California since the state Supreme Court initially overturned the ban. Such marriages might continue to exist, but be considered invalid by the state. Meanwhile, same-sex marriages previously solemnized in California would be viewed as valid in places like New York, where the law recognizes out-of-state gay marriages.

Opinion and Analysis: Why did Prop 8 pass?

Prop 8 passed by a close margin. Many wonder what factors went into the ban passing. Analysts say that those in favor of Proposition 8 were able to use “scare tactics” that were never diffused by the opposition. Republican political consultant Wayne Johnson told the Los Angeles Times that backers were able to convince voters that schools would be actively endorsing gay marriage to children, and that churches would be punished for not performing gay marriages.

According to exit polls, 70 percent of black voters and more than 50 percent of Latino voters in California supported the gay marriage ban. The AP reports that these minority groups came out “in droves” to support Obama and may have provided the bulk of the votes in favor of Prop 8.

A blogger for the San Francisco Chronicle accuses Mayor Gavin Newsom of hurting, not helping, the campaign to stop Prop 8 from passing. Phil Bronstein suggests that Newsom’s ego was more important to him that working to gain support in the right areas. He opted to go to gay-friendly communities that were already settled on overturning the ban rather than try to sway voters in more anti-gay communities.

Related Topic: Three gay marriage bans pass on Election Day

On Election Day 2008, California was among three states to have a gay marriage ban on the ballot. Although the vote in California is still close and not quite final, “Proposition 102 passed in Arizona with 56 percent of the vote, according to CNN. In Florida, voters opted for the ban by a margin of 62-38 percent,” findingDulcinea reported.

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