Great Seal of the State of California

Great Seal of the State of California

With California’s Proposition 8 now a part of California’s constitution, the next step in the battle over same-sex marriage will likely turn to the courts. With that in mind, it’s important to look at where the issue of same-sex marriage might be headed in the courts to understand the governmental processes at work as this very high-profile issue takes national center-stage, especially now with Barack Obama in the White House and the House and Senate controlled by the Democrats.


The campaign for a constitutional amendment banning gay marriage in the United States is a young one, but very reflective of modern society in the United States and the culture war that exists between liberal and traditional or conservative values. Briefly, back in 2000, California voters passed by a large majority an amendment to the California Family Code (CFC) that formally defined marriage as a union between a man and a woman. In 2004, the Massachusetts Supreme Court–in a landmark ruling that made international headlines–decided that laws prohibiting gay marriage were unconstitutional, thus opening the door for gay men and women to legally marry for the first time in the United States. This ruling drew immediate attacks from those opposed to gay marriage and resulted in an attempt to pass an amendment to the United States Constitution that would restrict marriage in all states to be between a man and a woman. The issue polarized America and became a major campaign issue in the 2004 election cycle. George Bush used the same-sex marriage issue to eek out a narrow re-election to the Presidency over John Kerry, Senator from Massachusetts.

Fast-forward to 2008. The State of Connecticut legalizes gay marriage. And citing the case of Perez v. Sharp, which 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,”

the California Supreme Court overturned that section of the CFC in May 2008 on the basis that codifying marriage as strictly between a man and a woman violated the equal protection clause of the California Constitution. 18,000 gay couples proceed to wed in California.

Same-sex marriage opponents went into high gear, gathering signatures for a proposition to amend the California Constitution that would define marriage as between a man and a woman. The proposition was placed on the ballot and survived several legal challenges and a bitter campaign on both sides to pass by a slim 4-percent majority in November, 2008. More money was spent on Proposition 8 than every other campaign in the United States except the Presidential election itself.

While it is unclear whether the passage of Proposition 8 will invalidate the 18,000 same-sex marriages that have already taken place, the passage of Proposition 8 has set in motion a chain of events that can only end, one way or the other, with the U.S. Supreme Court striking down California’s newest Constitutional Amendment, thus allowing gay men and women to marry in California and perhaps everywhere else in the United States, or the passage of an Amendment to the United States Constitution that will once and for all ban gay marriage by constitutionally defining marriage to be between one man and one woman.

The road to that end if it comes to pass, however, is likely to be a long and convoluted one. This article is intended to enumerate and explain the processes involved, not to take a side either way.

State Action and Court Challenges

The following is a quick summary of the state of gay unions in the United States:

  • About 85,000 same-sex couples nationwide have entered into a legally recognized relationship–about 40 percent of couples living in states where such unions are legal and about 10 percent of all the nation’s same-sex couples.
  • More than 27,000 same-sex American couples have been legally married nationwide, almost all in California and Massachusetts.
  • On Election Day, November 4, 2008, three states voted to add constitutional amendments banning gay marriage–Arizona, Florida, and California
  • The highest-profile of these amendments was the narrowly passed Proposition 8 in California, where gay marriage was legalized in May, 2008. California, the nation’s most populous state, is seen as a harbinger of social change and was a hot destination this year for marriage-minded gays and lesbians.
  • There are now 30 states with explicit constitutional bans on gay marriage, most passed within the past four years. They include Wisconsin, North Dakota and South Dakota.
  • Minnesota and Iowa are among 15 states with laws restricting marriage to one man and one woman.
  • Gay marriages are now legal in two states–Massachusetts (since May 2004) and Connecticut (beginning last Wednesday)–as well as Canada (since 2005).
  • Civil Unions are legally recognized in New Hampshire, New Jersey and Vermont.
  • Oregon, Washington, Hawaii, the District of Columbia and Maine have domestic partnership laws granting gay couples varying degrees of spousal rights.
  • Also on election Day, Arkansas gays and unmarried straight couples were banned from adopting or fostering children.

The Florida Marriage Protection Amendment, which defines marriage as a union between a man and a woman, was supported by more than 62 percent of voters statewide–surpassing the 60 percent threshold needed for ratification. Supporters of Florida’s Amendment 2 argued it was needed to protect the “traditional” institution of marriage and families by promoting homes with a mom and a dad, not two moms or two dads.

John Stemberger, president and general counsel of the Florida Family Policy Council, which led the campaign to pass Amendment 2 said:

This was not about being against anyone. We’re talking about a universal human social institution. it is undeniable how important that is.

While supporters said the amendment’s only purpose was to define marriage as a union between a man and a woman and that it would not infringe on the rights of any Floridian, opponents disagreed. They argued that gay and straight unmarried Floridians risked losing domestic partner benefits, such as health insurance, hospital visitation rights and the ability to make end-of-life decisions.

Critics of the amendment also expressed concern that its wording was “vague” and could possibly lead to lawsuits challenging shared health plans. Lawsuits may challenge other rights of domestic partnerships as well. Marriage is, in at least one respect, a social contract. A contract that is, by necessity, uniform in its purpose. That purpose is to confer certain rights and responsibilities between people. The General Accounting Office lists more than 1,000 rights and responsibilities enumerated to married people.

It is unclear which of these rights and responsibilities apply in domestic partnerships under the varying laws of each state, leaving open the possibility of independent challenges to each right’s and/or responsibility’s application in each state. The primary reason why such uncertainty exists is that many of these rights and/or responsibilities appertain to property rights and law, which absolutely include inheritance and beneficiary issues.

The Ball is in California’s Court

On November 5th, 2008, the American Civil Liberties Union (ACLU), Lambda Legal and the National Center for Lesbian Rights (NCLR) filed a writ petition before the California Supreme Court urging the court to invalidate Proposition 8. The petition charges that Proposition 8 is invalid because the California ballot initiative process was improperly used in an attempt to undo the state constitution’s core commitment to equality for everyone by eliminating a fundamental right from just one group–lesbian and gay Californians. Proposition 8 also attempts to prevent the courts from exercising their constitutional role of protecting equal protection rights of minorities. According to the California Constitution, such changes to the organizing principles of state government cannot be made by simple majority vote through the ballot initiative process, but instead must, at a minimum, go through the state legislature first.

The California Constitution, and virtually all state constitutions, specifies two ways to alter the constitution itself. Proposition 8 was put on the ballot through the initiative process, which is one legitimate way to alter the constitution of California. However, because of it’s scope in dealing with equal protection issues, those urging the overturning of Proposition 8 say that placing it on the ballot was improper without first being approved by the California State Legislature prior to submitting it to the voters. That didn’t happen with Proposition 8 and that’s why opponents say it is invalid.

Jenny Pizer, a staff attorney with Lambda Legal explains:

If the voters approved an initiative that took the right to free speech away from women, but not from men, everyone would agree that such a measure conflicts with the bsic ideals of equality enshrined in our constitution. Proposition 8 suffers from the same flaw–it removes a protected constitutional right–here, the right to marry–not from all Californians, but just from one group of us. That’s too big a change in the principles of our constitution to be made just by a bare majority of voters.

Elizabeth Gill, a staff attorney with the ACLU of Northern California adds:

A major purpose of the constitution is to protect minorities from majorities. Because changing that principle is a fundamental change to the organizing principles of the constitution itself, only the legislature can initiate such revisions to the constitution.

So if equal protection issues are at stake with the passage of Proposition 8, why did the California Supreme Court deny taking action to remove it from the ballot? Shannon Minter, Legal Director of NCLR explains:

Historically, courts are reluctant to get involved in disputes if they can avoid doing so. It is not uncommon for the court to wait to see what happens at the polls before considering these legal arguments. However, now that Proposition 8 has passed, the courts will have to weigh in and we believe they will agree that Proposition 8 should never have been on the ballot in the first place.

If Shannon Minter is correct this would not be the first time the California Supreme Court has struck down an improper voter initiative. In 1990, the court struck down an initiative that would have added a provision to the California Constitution stating that the “Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States.” That measure was invalid because it improperly attempted to strip California’s courts of their role as independent interpreters of the state’s own constitution.

The Los Angeles Times agrees that the ACLU and NCLR opponents of Proposition 8 have a good argument. On November 10, 2008, Gordon Liu, Associate Dean and Professor of Law at UC Berkeley explains:

Article 18 of the state Constitution provides that the document can be changed by amendment or revision. An amendment may be enacted by initiative with a majority vote, whereas a revision must first be passed by two-thirds of the Legislature before being submitted to the voters. (California’s Legislature has voted twice in recent years to legalize same-sex marriage, but Governor Schwarzenegger has vetoed it both times saying it was a matter for the people of California to decide through a ballot initiative, and thus is not the job of the legislature.)

Does Proposition 8 qualify as a revision? Under the case law, it’s a revision only if it “substantially alters the basic governmental framework set forth in our Constitution.” Proposition 8 does exactly that, its opponents say, by eliminating a fundamental right for a specific group, and by limiting the judiciary’s constitutional role in enforcing equal protection and privacy guarantees.

Historically, however, the court has taken a narrow view of what kind of measure “substantially alters teh basic governmental framework.” For example, neither Proposition 13, which capped property tax rates, nor Proposition 140, which imposed legislative term limits, were held to be a revision of the Constitution despite their far-reaching transformation of state government. Moreover, a 1972 initiative that reinstated the death penalty after the court had declared it cruel and unusual punishment was also deemed an amendment, not a revision, even though it directly limited the judiciary’s pwer to declare fundamental rights.

Nevertheless, there appear to be good reasons for the California Supreme Court to rethink its prior decisions regarding same-sex marriage. Even if Proposition 8 does not “substantially alter the basic governmental framework,” there is no question that it targets a historically vulnerable minority in gay men and women and eliminates an important right that the rest of the population enjoys. Changing the Constitution–the supreme law of the land–in such a dramatic way arguably calls for more deliberative thought rather than direct democracy where a simple vote yea or nay has such far-reaching consequences. Indeed, as early as the nation’s founding, our constitutional tradition has favored representative democracy over simple majority rule when it comes to deciding minority rights. That’s why we have an electoral college that actually elects the President, instead of an election by the simple majority of the people, among other reasons.

The second major question now is whether Proposition 8 means that California must nullify the roughly 18,000 same-sex marriages that have taken place in recent months. Although this answer is not clear-cut, retroactivity is generally not indicated because people are entitled to conduct their lives in reliance on the law as it exists today without having to anticipate how the law might change at some future time. Same-sex couples who got married may have decided to move in together, to buy property together or even to adopt children in reliance on the personal commitment and societal legitimacy that comes hand-in-hand with marriage.

In terms of applying Proposition 8 retroactively, courts have been willing to apply the law in some instances retroactively if retroactivity is clearly stated in the law itself or is clearly intended by the voters. The text of Proposition 9 contains no clear statement regarding retroactivity one way or the other. The official voter information guide contains a statement that Proposition 8 applies to marriages “regardless of when or where performed,” but this language is buried in the fifth paragraph of the proponent’s argument against the opponents’ argument against Proposition 8. It’s not in the language of the initiative itself, so there’s very thin support for retroactivity.

At the end of the day, why does it matter whether gay couples remain married in a post-Proposition 8 world? One answer has to do with the dignity and stature in society that marriage confers. Even if marriage provides no greater rights than domestic partnership, a separate but equal way of looking at gay marriage unavoidably signals that same-sex relationships are of lesser worth. Further, according to the GAO already cited, marriage does provide greater rights and responsibilities than a domestic partnership as specified by the laws of each state and interpretation of each state’s court systems.

Another reason why Proposition 8 matters has to do with the future of gay marriage in the United States. Gay marriages is in the center of a culture war, and culture wars are won through symbols, examples and personal experiences that shape every one’s world view. Each of the 18,000 same-sex couples and their families in California represents a potential catalyst for broader acceptance of gay marriage. The more familiar we become with gay spouses and their children–as our friends, neighbors and co-workers–the more gay marriage will become an ordinary thread of our social fabric. Proposition 8 may then come to be viewed not as an enduring constitutional principle but as the will of a narrow, and ultimately temporary majority.

On Deck: The Fourteenth Amendment

The entire nation will be watching how the challenges to Proposition 8 unfold in California very carefully. Consequently, the issue of same-sex marriage will likely remain prominent national news for some time. Especially since Proposition 8 will likely be challenged in the federal court system in addition to the California Supreme Court. Most likely opposition groups will mount a legal challenge in federal courts on the basis that California’s Constitution is in violation of the Fourteenth Amendment of the U.S. Constitution.

The Fourteenth Amendment
The Fourteenth Amendment to the U.S. Constitution is generally the keystone to any civil rights argument. Ratified in 1868 after the Civil War, the Fourteenth Amendment has been used to end segregation and legalize abortion. the relevant portion of the amendment reads: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Both the clauses: equal protection of the law, and nor shall any State deprive any person of life, liberty, or property; are in play in regards to the issue of same-sex marriage. And opponents of a same-sex marriage ban are likely to cite the Supreme Court precedent of Loving v. Virginia:

Contrary to popular belief, the right to marry for interracial couples comes not from legislatures becoming more liberal, but from judicial activism. In Loving v. Virginia the Supreme Court unanimously ruled that the Commonwealth of Virginia’s “Racial Integrity Act,” which required a citizen’s race to be recorded and made it a felony to marry outside one’s race, was unconstitutional on the grounds that it violated the Equal Protection Clause of the Fourteenth Amendment.

Writing the Majority Opinion, chief Justice Earl Warren wrote: the Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, teh freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed on by the State.

In 1992, voters in Colorado saw what the Loving v. Virginia ruling might imply for same-sex marriages, so they attempted to amend the Colorado Constitution in a way that would ban same-sex marriage if gays and lesbians were indeed categorized as a minority:

Neither the state of Colorado, through any of its branches or departments, or any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of, or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.

The Amendment was never enacted as a District Court judge approved an injunction against the law, and the Colorado Supreme Court overruled it on the grounds that it violated the Fourteenth Amendment when “strict scrutiny” was applied.

The State of Colorado appealed to the U.S. Supreme Court in Romer v. Evans, and the Court voted 6-3 that the U.S. Constitution’s Fourteenth Amendment supersedes the Colorado Constitution and that Amendment 2 was so broadly hostile to a minority group that there was no compelling state interest to enact it.

Lawrence v. Texas
In 2003 the Supreme Court ruled that consensual sex acts within the home are protected by a right to privacy. Many states have alwas on teh books outlawing sodomy and even fornication outside of marriage under any circumstances. However, in prior cases Griswold v. Connecticut and Eisenstadt v. Baird, the Supreme Court ruled that the decision to beget or bear children was fundamental and immune to government intrusion. In Bowers v. Hardwick the Court upheld a Georgia law banning sodomy between two consenting males, citing America’s aversion to homosexuality as a reasonable basis for not extending protection to homosexual sex. In deciding Lawrence however, the Court overruled their previous decision in Bowers–which is an extraordinary step for the Supreme Court which is most reluctant to overrule themselves–and held that the Texas law did not contain a compelling state interest that justified the intrusion into Mr. Lawrence’s home.

Given the above Supreme Court decisions, it would appear that the Supreme Court sees that the definition of a marriage as one man married to one woman may be needlessly discriminatory, and if so, a legal argument for Gay Marriage may be emerging:

  • In Lawrence the Supreme Court held that morality could not be the factor that overrides one’s civil liberties.
  • In Loving the Supreme Court ruled that the decision to marry is a fundamental right that resides with the individual, not the state.
  • In Romer, the Supreme Court ruled that the state cannot discriminate against homosexuals.

So what do the above decisions mean for the future of same-sex marriage in the United States and the prospects of Proposition 8 surviving legal challenges in California? It’s possible that marriage will be seen as a fundamental individual right and that the state cannot remove that right without showing a compelling state interest that is not solely based on concepts of morality. Unless opponents of same-sex marriage can provide a new and compelling argument opposing same-sex marriage, they are only left with the popular-majority argument (which was overruled in Loving and the morality argument (which was overruled in Lawrence). With no legal argument left, the Supreme Court would ultimately conclude that gay-marriage bans are needlessly discriminatory and unconstitutional. Unless, that is, gay-marriage bans became constitutional.

The U.S. Gay Marriage Ban Amendment

And finally, this article comes full circle. After the court challenges to Proposition 8 end in California. After each state enacts its own same-sex marriage ban amendment or legalizes same-sex marriage. After the ACLU and the NCLR have exhausted every legal avenue, the American People will decide once and for all by either ratifying or defeating a United States Constitutional Amendment.

When such an amendment might be proposed is hard to say. In 2004, immediately after the Massachusetts Supreme Court legalized same-sex marriage in Massachusetts, Congress sought to pass a constitutional amendment that would restrict marriage to be between one man and one woman for all fifty states. While that attempt to pass the amendment failed, the issue was a factor in the 2004 Presidential race between George Bush and John Kerry.

Barack Obama has gone on record stating that he personally considers marriage to be between a man and a woman, and that he supports civil unions that confer comparable rights rather than gay marriage; but that he opposed Proposition 8 and other attempts to amend federal and state constitutions. This view may become important should one or more seats on the United States Supreme Court come open.

The Supreme Court make-up as it currently stands is quite moderate overall and evenly balanced representing both conservative and liberal views. This is probably the most healthy makeup conceivable for the Supreme Court, which reflects the split in philosophies inherent in all the American people. The court should not become either heavily liberal or heavily conservative, but should stay balanced with philosophical voices of All Americans represented in balance. Depending on which seats become open while Barack Obama is president, if any of them do, and the nominations that Barack Obama makes, the court could tilt either left or right and thus affect how challenged laws are interpreted by the court.

With the current makeup of the Supreme Court, it is possible that the court may decline to hear same-sex marriage issues, thus leaving decision making power to the individual state legislatures, state supreme courts and state residents through ballot initiatives such as Proposition 8. With a different makeup of the Supreme Court, it is possible that the court may become either more or less inclined to hear such cases and make decisions.

The unknown variables are society and time. Over time, the values of any given society change. The values of our society and those reflected by our culture have changed considerably over time. And they will change more over the next four years, the next eight years, the next twelve years. But for the sake of argument, considering that most states and the majority of our society currently opposes same-sex marriage, should the U.S. Supreme Court rule that Proposition 8 is a violation of the Fourteenth Amendment, almost certainly anti-same-sex marriage activists will seek a United States Constitutional Amendment to ban it outright.

Such an amendment failed to get through Congress in 2004. It would certainly face an uphill fight in 2009. There are four ways an amendment can be made to the U.S. Constitution. The first two pathways have never been used:

  • 2/3 of the States will call for a Constitutional Convention, the Convention will propose one or more Amendments, and the amendment(s) must be approved by 3/4 of the State Legislatures.
  • 2/3 of the States will call for a Constitutional Convention, the Convention will propose one or more Amendments, and the amendment(s) must be approved by 3/4 of the States holding their own conventions to vote on the Amendment(s).
  • A bill proposed by Congress which passes both houses with a 2/3 majority, and then it is sent to the states to be approved by 3/4 of the states in convention. (Only happened once.)
  • A bill proposed by Congress which passes both houses with a 2/3 majority, and then it is sent to the states to be approved by 3/4 of the state legislatures.

As voters in California demonstrated with Proposition 8, and voters in Florida and Arizona demonstrated with their own same-sex marriage bans on November 4, the issue of same-sex marriage is a hot issue. The issue remains far from being resolved; but after reading this article, it should be clear that the processes and mechanisms necessary to resolve the same-sex marriage issue are in place inside our government.

Thanks for reading.

-Matthew S. Urdan

Document Citation

  • “The Legal Wrangling Over Same-Sex Marriage” by J. D. Dunn,, November 10, 2008
  • “State of Gay Unions in the United States,”, November 7, 2008
  • “Marriage by Gays Met with a Loud No Vote,” by Jennifer Mooney Piedra,, November 8, 2008
  • “Legal Groups File Lawsuit challenging Proposition 8,”,, November 7, 2008
  • “The Law and Proposition 8,” by gordon Liu, Associate Dean and Professor of Law at UC Berkely in, November 10, 2008
  • “Constitutional Amendments”, n.d.
  • “The Constitution”, n.d.
  • “Prop 8. Opponents rally across California to protest gay-marriage ban,” by Jessica Garrison Corina Knoll,, November 16, 2008
  • “Obama Statement on Vote Against Constitutional Amendment to Ban Gay Marriage”,, October 13, 2008
  • “Obama on same sex marriage”,, October 13, 2008.
  • “Obama rejects proposed California gay marriage ban” by Aurelio Rojas in the Sacramento Bee, August 13, 2008.
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