Posted by: Lisa Pampuch | September 9, 2008

Prop 8 attempts to delay the inevitable

Gov. Arnold Schwarzenegger twice overrode the will of the people’s elected representatives to legalize same-sex marriage by vetoing AB43 in 2007 and AB849 in 2005.

In 2000, California voters banned same-sex marriage by approving Proposition 22.

Opponents of same-sex marriage, like Dispatch columnist Cynthia Walker, point to Prop 22, while proponents point to the state Constitution’s equal protection clause and the legislature’s votes in 2005 and 2007.

The clash found its way to the California Supreme Court, the proper venue for settling state constitutional disputes. In May, the California Supreme Court ruled [PDF] that same-sex marriage prohibitions violate the California Constitution’s equal protection clause.

Despite the hyperventilation of Walker and others, the justices who decided this issue were not activists overstepping their proper judicial roles. Rather, they were fulfilling their duty to interpret the California Constitution.

Either way the Supreme Court ruled – for or against same-sex marriage – the decision would have been viewed as ignoring the will of the people. Either the court would be accused of ignoring Prop 22 or it would be accused of ignoring the will of the people’s elected representatives as expressed in AB43 and AB849.

The California Constitution’s equal protection clause properly settled the issue, echoing the interracial marriage cases of Loving v. Virginia and Perez v. Sharp.

More than 40 years ago, laws banning interracial marriage wouldn’t have been repealed if put to a vote. It took the United States Supreme Court to tell Americans that they were not living up to the promises of the Constitution: In 1967, in Loving v. Virginia, the Supreme Court ruled that laws banning interracial marriage violated the equal protection clause of the U.S. Constitution.

Those opposed to interracial marriage made many of the same arguments about “nature,” the Bible and tradition and made the same predictions of dire consequences that are hurled today by same-sex marriage opponents.

In both cases, these arguments are poppycock. Homosexual behavior occurs in the animal kingdom. Biblical arguments have no place in deciding our laws or our constitutions. Just because something’s been done a particular way for a long time (slavery, disenfranchisement of women and racial minorities, to name just two) doesn’t make it right. Same-sex marriage is legal in six other countries and one other state without dire consequences.

Proposition 8 will appear on your November general election ballot. It would change the California Constitution to “eliminate the right of same-sex couples to marry.” It would create a conflict in the state’s Constitution between this clause and the equal protection clause that will head right back to the courts.

Note that the California Supreme Court telegraphed how it would rule should Prop 8 pass, writing, “… we conclude that, under this state’s Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process.

Opinions on same-sex marriage follow generational lines: The Field Poll in May found [PDF] that a majority of Californians 50 and older oppose same-sex marriage, while a majority of Californians younger than 50 support it. The younger the group, the higher the percentage of support.

In 1968, a Gallup poll found that only 20 percent of Americans approved of interracial marriage. In 2007, Gallup found that 77 percent of Americans approved of interracial marriage.

Just like laws banning interracial marriage, laws banning same-sex marriage will become a shameful part of our past.

After the Field Poll was released, LA Times columnist Joel Stein devoted a column to the older-than-50 set, writing these witty but wise words:

“I know that picturing gay people having sex skeeves you out. But if that were a test for being married, we’d have a constitutional amendment pulling your marriage license at age 60. …

“Remember how your parents felt about desegregation? And how their parents objected to women’s suffrage? And their parents felt about indoor fire? This may seem different, but it isn’t. Gays are going to be fully accepted by society. You can either slow that process in a desperate attempt to keep the world safely the same, or you can help expedite that change and get to see what the future will be like.”

On Nov. 4, I hope you’ll join me in rejecting the attempt to write discrimination into California’s Constitution by voting no on Prop 8.



  1. […] into the state’s constitution, of course, the matter immediately went to the courts, as I predicted. We knew that there was more work to do in the battle for marriage equality in other states and at […]

  2. I agree that the right to marry should not be based on the gender identity of of the parties seeking to marry and that it is a matter of equal protection as guaranteed by the states constitution. I disagree that it will be looked back on as a shameful period in that it was (is) the prevailing spirit of the times and cannot be fairly judged using chronological standards.

    It may be said that proponents of Prop 8 were (are) less enlightened than those who objected to it were (are). This is something with which I would agree. Change of opinion on social issues is incremental. It is generational. As the generations who were brought up to believe that certain forms of social interaction are unnaceptable pass on and the new guard takes their place, so will the advancement of more enlightened social norms.

    I do not judge failed ideals and traditions as shameful to the people who held them. I applaud the advancement of enlightenment.

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