Saturday, 8 November 2008

California: and then there were two

The elections in the US on Tuesday were not just about choosing the President. There were a number of anti-gay propositions put in several states. All were successful.

Before the election

Several months ago, only one US state permitted same sex marriage: Massachusetts. Then the California Supreme Court said that same sex marriage was permitted in California as a "fundamental right" under its constitution. Soon after, the Connecticut Supreme Court said that granting civil unions was not enough- gay and lesbian people were entitled to marry as a right under the Connecticut constitution.

After the election


Proposition 102: ban on same sex marriage

This measure would amend the Arizona constitution so that only a union between one man and one woman would be valid or recognized as a marriage in Arizona. A similar measure was on the ballot in 2006 but failed. The measure succeeded 56%/44%, despite the Governor's wife being on the No committee. It has been reported that an extraordinary amount of money was thrown at the Yes vote.


Initiative 1: Ban on gay couples adopting children

This measure would prohibit unmarried "sexual partner[s]" from adopting children or from serving as foster parents. The measure specifies that the prohibition applies to both opposite-sex as well as same-sex couples. the measure succeeded 57%/43%.


Proposition 8: ban gay marriage

This measure would amend the California constitution to specify that only marriages between one man and one woman would be recognized as valid in California. If passed, the measure would trump a May 2008 ruling by the California Supreme Court that legalised same-sex marriage.

The measure passed 52%/48%. CNN shows a county by county breakdown- the Bay area voting against, LA sitting on the fence and Orange County voting in favour.

This is what Kate Kendall from the National Center for Lesbian Rights has to say about the result:

I write this with a heavy heart. I, like you, have sacrificed everything in
our fight to defeat Prop 8. And on Tuesday, we lost. This is an outcome that is
fundamentally unjust, unfair, and wrong. We banded together as a community like
never before. We gave our hearts, our money, our time, and our unwavering
commitment—and for that we should be proud.

Proponents of Prop 8 lied, cheated, and extorted to win. They ran a
disgraceful campaign that distorted the truth, exploited children, and preyed
upon fear. They had a staggering war chest of resources—a good portion of which
came from out of state. The Mormon Church invested more than $14 million and
mobilized their members to canvass door-to-door, phone bank from Utah, and
telecast anti-gay sermons throughout their congregations. The proponents sunk to
the lowest level of fear mongering and lies —something we would never do.

In spite of such dirty politics, we captured 48% of the vote—and three
million ballots remain to be counted—which is good news upon which we can build.
We have seen a tidal shift in public understanding of the importance of
respecting our relationships and our families over the past eight years. Which
is why it is all the more important that we continue to stand, and stand
together, for fairness and justice in the aftermath of yesterday's vote.

This was a crushing defeat. But this was not the fight of our lives.
That is yet to come. We are not done yet. As I write this, I feel anger,
frustration, and overwhelming disappointment, but I have felt this way before:
when we lost the marriage case at the California Court of Appeal before we won
in the California Supreme Court, when Congress moved forward with a
non-inclusive ENDA before our national community mobilized to demand an
inclusive bill, when the U.S. Supreme Court upheld laws criminalizing same-sex
intimacy in Bowers v. Hardwick before it repudiated that devastating ruling in
Lawrence v. Texas. In all civil rights movements, there are setbacks and
stinging losses. But we must pick ourselves up and move forward. There is no
other choice. It is the only way to create change.

And the change has begun. History was made with the election of Barack
Obama as our nation’s first African American president. The significance of that
cannot be overstated. Our nation has elected many fair-minded leaders who we
hope will work to protect us and our families.
So today I make you this promise: I will keep fighting. I need you to make the same promise. There is so much work to be done, and NCLR is here. We’re not going anywhere, and we will not rest until every LGBT person in this country has full equality under the law.


Amendment 2: Ban gay marriage

This measure would amend the Florida constitution to define marriage as a union between one man and one woman. In order to amend the Florida constitution, 60 percent of voters must vote in favor of the amendment. The measure passed 62%/38%.

California: the aftermath: challenge to proposition 8

On Wednesday, the American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights filed a writ petition before the California Supreme Court urging the court to invalidate Proposition 8 if it passes. They said:

The petition charges that Proposition 8 is invalid because the initiative
process was improperly used in an attempt to undo the constitution’s core
commitment to equality for everyone by eliminating a fundamental right from just
one group—lesbian and gay Californians. Proposition 8 also improperly attempts
to prevent the courts from exercising their essential constitutional role of
protecting the equal protection rights of minorities. According to the
California Constitution, such radical changes to the organizing principles of
state government cannot be made by simple majority vote through the initiative
process, but instead must, at a minimum, go through the state legislature

The California Constitution itself sets out two ways to alter the
document that sets the most basic rules about how state government works. Prop 8
passed through the initiative process. However, any measure that would change
the underlying principles of the constitution must first be approved by the
legislature before being submitted to the voters. That didn’t happen with
Proposition 8, and that’s why it’s invalid.

“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 basic 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,” said Jenny Pizer, a staff attorney with Lambda
Legal. “That’s too big a change in the principles of our constitution to be made
just by a bare majority of voters.”

“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,” added Elizabeth Gill, a staff
attorney with the ACLU of Northern California.

The lawsuit was filed in the California Supreme Court on behalf
of Equality California and 6 same-sex couples who did not marry before Tuesday’s
election but would like to be able to marry now.

The groups filed a writ petition in the California Supreme Court before
the elections presenting similar arguments because they believed the initiative
should not have appeared on the ballot, but the court dismissed that petition
without addressing its merits. That earlier order is not precedent here.

“Historically, courts are reluctant to get involved in disputes if they
can avoid doing so,” said Shannon Minter, Legal Director of National Center for
Lesbian Rights (and lead counsel in the California marriage case). “It is not
uncommon for the court to wait to see what happens at the polls before
considering these legal arguments. However, now that Prop 8 may pass, the courts
will have to weigh in and we believe they will agree that Prop 8 should never
have been on the ballot in the first place.”

This would not be the first time the court has struck down an improper
voter initiative. In 1990, the court stuck 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 constitution.

In a statement issued earlier today, the groups stated their
conviction, which is shared by the California Attorney General, that the state
will continue to honor the marriages of the 18,000 lesbian and gay couples who
have already married in California. A copy of the statement as well as the writ
petition filed today is available a,, and

Response by

General counsel, Andrew Pugno said:

The lawsuit filed today by the ACLU and Equality California seeking to
invalidate the decision of California voters to enshrine traditional marriage in
California’s constitution is frivolous and regrettable. These same groups filed
an identical case with the California Supreme Court months ago, which was
summarily dismissed. We will vigorously defend the People’s decision to enact
Proposition 8.

This is the second time that California voters have acted to define
marriage as between a man and a woman. It is time that the opponents of
traditional marriage respect the voters’ decision.The ACLU/Equality California
lawsuit is completely lacking in merit. It is as if their campaign just spent
$40 million on a losing campaign opposing something they now say is a legal
nullity. Their position is absurd, an insult to California voters and an attack
on the initiative process itself.The right to amend California’s Constitution is
not granted to the People, it is reserved by the People. The Supreme Court has
repeatedly acknowledged the reserved power of the People to use the initiative
process to amend the Constitution.

For example, when the Rose Bird Court struck down the death penalty as a
violation of fundamental state constitutional rights, the People disagreed, and
in the exercise of their sovereign power reversed that interpretation of their
Constitution through the initiative-amendment process. Even a liberal jurist who
vehemently disagreed with the People’s decision on the death penalty, Justice
Stanley Mosk, nevertheless acknowledged the People’s authority to decide the
issue through the initiative-amendment process.

It should also be noted that the ACLU recently made this same
“constitutional revision” claim in a nearly identical matter in Oregon and it
was unanimously rejected. The claim was made under almost identical provisions
of the Oregon State Constitution, against an almost identical voter
constitutional amendment which read, “…only a marriage between one man and one
woman shall be valid or legally recognized as a marriage.” The Court of Appeals
of Oregon unanimously rejected the ACLU’s “revision” claim. (Martinez v.
Kulongoski (May 21, 2008) --- P.3d----, 220 Or.App. 142, 2008

The coalition that has worked so hard for the past year to enact
Proposition 8 will vigorously defend the People’s decision against this
unfortunate challenge by groups who, having lost in the court of public opinion,
now turn to courts of law to pursue their agenda.

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