November 4, 2008 Ballot Prop. 8

Introduction

The traditional and predominant legal stance in most of the 50 states is that marriage, as legally defined, can be viewed only as a legally recognized union of one man and one woman. That is, it cannot be defined as a union of same-sex partners, or even as a union of unmarried opposite-sex partners. There are differing views, mainly among academics, as to when same-sex unions were first historically prohibited and whether same-sex unions were actually prohibited by the force of law until relatively recent times. However, the idea that the prohibition of same-sex unions has deep and longstanding social and legal roots is commonly used in legal arguments as a basis for formulating or maintaining restrictions on same-sex marriage.

The 1986 United States Supreme Court majority opinion in Bowers v. Hardwick (470 US 186), which upheld a Georgia law criminalizing consensual sex between adult homosexuals, was based, in part, on the proposition that "proscriptions against [consensual sodomy] have ancient roots" dating back to common law and to the laws of the original 13 states when they ratified the Bill of Rights. The 2004 majority opinion overturning Bowers in Lawrence v. Texas (539 US 558), noted that "there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter .... The absence of legal prohibitions focusing on homosexual conduct may be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century." Justice Antonin Scalia's dissent in Lawrence predicted that it would lead to "judicial imposition of homosexual marriage," given that the ruling "dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned."

Since same-sex marriage moved to the forefront of the national debate as an issue in the past several years, many states have passed laws that legally enshrine bans of same-sex unions, either as statutes or as amendments to a particular state's constitution. Typical language for these same-sex marriage bans is found in Ohio's constitution, which formalized a ban on same-sex marriage in 2004: "Only a union between one man and one woman may be marriage valid in or recognized by this state or its political subdivisions. This state or its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, signficance or effect of marriage."

An alternate view, with roots in the civil rights movement and related political activism of the 1960s, takes the position that marriage is a body of rights which should be extended, as a matter of fairness and equality, to couples who do not fit the one man/one woman definition. Many in the gay rights movement have made the right to marry a key position in their campaign for equal rights under the law. A compromise position is the the concept of domestic partnership or civil union, in which all or most of the legal rights of marriage are extended to same-sex couples, but not the name "marriage" itself. In practice, however, many laws that ban same-sex marriages also eradicate any arrangements that mimic or resemble same-sex marriage, including civil unions, domestic partnerships, and, in some interpretations of such laws, even the right of one partner to visit the other in cases of hospitalization.

National Challenges to Same-Sex Marriage Bans

In May 1993, the Hawaii State Supreme Court sent back for review to a lower court the case Baehr v. Lewin, which involved three gay couples who sued the State Department of Health for not issuing same-sex marriage licenses. The ruling was 3-1 in favor of sending the case back to the lower court. The decision stated that "there is no fundamental right to marriage for same-sex couples under article I, section 6 of the Hawaii Constitution," but held that there was an open question as to whether the State Health Department's prohibitions against issuing same-sex marriage licenses violated the state constitution's equal protection clause, contending that "the DOH's refusal to allow [plaintiffs] to marry on the basis that they are members of the same sex deprives them of access to a multiplicity of rights and benefits that are contingent upon that status."  This was the first high-court case to find that excluding same-sex couples from marriage was discrimination.

Partly in response to the Hawaii ruling, Congress weighed in with the Defense of Marriage Act (Pub. L. No. 104-199, 110 Stat. 2419), denying federal recognition to same-sex marriages. The bill was passed on a 342-67 vote in the House and an 85-14 vote in the Senate, and was signed into law by President Bill Clinton (who was under pressure from a Republican-majority Congress and in his re-election campaign against Bob Dole) on September 20, 1996, with the statement, "I have long opposed governmental recognition of same-gender marriages and this legislation is consistent with that position. The Act confirms the right of each state to determine its own policy with respect to same gender marriage and clarifies for purposes of federal law the operative meaning of the terms 'marriage' and 'spouse.' This legislation does not reach beyond those two provisions. It has no effect on any current federal, state or local anti-discrimination law and does not constrain the right of Congress or any state or locality to enact anti-discrimination laws." What Clinton's statement did not note, however, was that DOMA has the effect of denying same-sex couples any rights and obligations provided by federal law to married couples, including those related to inheritance, Social Security benefits, and joint tax filing.

In December 1999 the Vermont Supreme Court ordered the state to extend the legal benefits of marriage to same-sex couples (Baker v. State of Vermont), based on the Common Benefits Clause of the Vermont Constiution, and in 2000 the Vermont legislature created the status of "civil union" to meet the court's mandate. In 2003 Ontario's high court ordered the Canadian province to allow same-sex couples to marry (Halpern v. Attorney General). In November 2003, the Massachusetts Supreme Judicial Court ruled, in Goodridge v. Department of Health, that same-sex couples could not be excluded from the benefits of marriage under the Massachusetts constitution. In February 2004, the court ruled further, in response to an inquiry from the State Senate, that the compromise of legally permitting same-sex civil unions "with all 'benefits, protections, rights and responsibilities' of marriage" would not pass constitutional muster. On May 17, 2004, the Commonwealth of Massachusetts became the first state in the union to legally sanction same-sex marriage.

A total of 39 states, including California, have passed their own "defense of marriage" or "marriage protection" statutes. Other than Massachusetts, the remaining states either have constitutional amendments that define marriage or have other legal statements in place, such as attorney general's opinions, to that effect. Although Vermont, for example, allows civil unions, it has a statute (Title 15, §8) that states, "Marriage is the legally recognized union of one man and one woman." In May 2003, Marilyn Musgrave (R-Colorado) introduced the Federal Marriage Amendment (H.J. Res. 56), a proposed amendment to the U.S. Constitution to ban gay marriage, but on July 14, 2004, the proposed amendment failed to clear the U.S. Senate. Those who oppose gay marriage have continued to push for a constitutional amendment. President George W. Bush made his opposition to same-sex marriage a keystone of his 2004 re-election campaign against John Kerry. Kerry backed proposals that would ban same-sex marriage in his home state and other states, although he was one of 14 senators who voted against DOMA in 1996.

On October 10, 2008, Connecticut's Supreme Court (in the case Kerrigan v. Commissioner of Public Health et al.) became the third in the Union to declare that existing state law prohibiting same-sex marriage was unconstitutional. As in the earlier cases of California and Massachusetts, the ruling of the court was in favor of the declaration of unconstitutionality by only one vote.

Those who see same-sex marriage as a civil rights issue take the view that the legalization of same-sex marriage is part of an inevitable process of extending rights to disadvantaged groups. Those who oppose same-sex marriage contend that gay people are not a disadvantaged group under accepted legal definitions, and are not entitled to special treatment. Opponents see the legalization of same-sex marriage as an attack on the family and the social order, and cast the issue in moral and religious terms.

California Developments

This timeline highlights changes to the California civil and criminal codes that defined the path toward same-sex marriage in California.  

• April 13, 1850: Criminal code is enacted that includes a sodomy provision with a penalty of five years to life. (Statutes of California 1850, Chapter 99).
• 1855: Law passed expanding the sodomy law to cover an "assault with an intent to commit" sodomy, with a penalty of 1-14 years.
• 1903: The law was expanded (Statutes Chapter 201) to include any act that represented an “outrage against public decency.”
• 1915 and 1921: Further amendments expand the law to include acts of oral copulation (Statutes Chapter 586 (1915) and Statutes Chapter 848 (1921)).
• 1920s-60s: Additional statutes mandated sterilization, castration, institutionalization, and/or registration as sex offenders for any violators.
• 1974: Voters approve Proposition 7, amending the State Constitution’s Declaration of Rights to explicitly include the right to privacy.
• 1975: Assemblymember Willie Brown  and state Senator George Moscone co-sponsor AB 489, the “Consenting Adults Bill,” which decriminalizes sexual activity between consenting adults.  Governor Jerry Brown signs the bill into law on May 12, 1975, and it goes into effect January 1, 1976.
• 1977: The California legislature amends the gender-neutral definition of marriage in the California Civil Code to explicitly define marriage as a legal bond between a man and a woman (California Civil Code, Section 4100).
• 1992: The legal definition of marriage is moved from the Civil Code to Section 300 of the Family Code.
• 1999: AB 26 is passed, establishing a domestic partnership registry, granting hospital visitation privileges to registered domestic partners, and providing health benefits to domestic partners of state employees.
• March 2000: Voters approve Proposition 22, a statute stating: "Only marriage between a man and a woman is valid or recognized in California" (Family Code Section 308.5). Like the federal Defense of Marriage Act, Proposition 22 prevents California from being obligated to recognize a same-sex marriage contracted in another state.  
• 2003: The Domestic Partners Rights and Responsibilities Act (AB 205) is passed, extending to registered domestic partners virtually all of the rights and responsibilities of marriage.  
• February 10, 2004: San Francisco Mayor Gavin Newsom proclaims that same-sex marriage will be permitted in San Francisco. He justifies the action on the grounds that not allowing same-sex couples to marry was a denial of equal protection under the California constitution.
• February 12 -March 11, 2004: San Francisco city officials issue marriage licenses to nearly  4,000 same-sex couples.
• March 11, 2004: The California Supreme Court orders San Francisco to cease issuing same-sex marriage licenses pending a judicial review.
• April 20, 2004: the Assembly Judiciary Committee of the California legislature approves AB 1967, legalizing same-sex marriage. While the bill does pass the full Assembly, the Judiciary Committee's action marks the first time that a state legislative committee in the United States has voted to approve same-sex marriage.  
• August 12, 2004: In a decision on two cases (Lockyer v. City and County of San Francisco and Lewis v. Alfaro), the state Supreme Court rules that San Francisco had acted outside the law and that the same-sex marriage licenses issued in San Francisco were invalid.  
• September 2004: Suits challenging the constitutionality of California's heterosexual marriage laws are consolidated in a proceeding (Marriage Cases, CJC-04-004365) before San Francisco Superior Court.
• March 14, 2005: A decision in the Marriage Cases by Superior Court Judge Richard Kramer finds that California's same-sex marriage ban violates the California Constitution. The state and other groups opposed to same-sex marriage file an appeal.
• April 4, 2005: A state appellate court denies a challenge (Knight v. Superior Court) to the expanded domestic partnership law, ruling that the law does not violate Proposition 22.
• August 10, 2005: The state Supreme Court denies a request by gay rights activists and  Attorney General Bill Lockyer to bypass the appellate court and hear the marriage cases directly, thus speeding up the appellate process.
• July 10, 2006: A state appellate court overturns the March 2005 Superior Court decision in the Marriage Cases.
• December 2006: The state Supreme Court agrees to review the case, formally called In re Marriage Cases, consolidated six separate suits involving Family Code §300 and §308.5.
• May 15, 2008: The California Supreme Court rules that the same-sex marriage ban enacted by Proposition 22 in 2000 is unconstitutional. The decision is 4-3 in favor of overturning the same-sex marriage ban.
• June 2, 2008: Proposition 8, the “California Marriage Protection Act,” qualifies for the November 4, 2008 ballot.
• June 17, 2008: Same-sex couples may marry in California, following the Supreme Court’s ruling in the Marriage Cases.
• November  4, 2008: Proposition 8 passes 52% to 48%,  adding a new provision to the California Constitution Declaration of Rights providing that "only marriage between a man and a woman is valid or recognized in California." Same-sex marriages cease as of November 5.
• May 26, 2009: The California Supreme Court upholds Proposition 8, but does not overturn same-sex marriages that occurred in the period between their ruling in May 2008 and the passage of Proposition 8 in November 2008.
• October 12, 2009:  Governor Arnold Schwarzenegger signs The Marriage Recognition and Family Protection Act (SB 54) into law, establishing that some same-sex marriages performed outside the state are also recognized by the state of California as "marriage," depending on the date of the union.
• February 7, 2012: A three-judge panel of the 9th Circuit Court of Appeals rules 2–1 that the ban on same-sex marriage in California is unconstitutional.
• November 30, 2012: Proposition 8, along with seven Defense of Marriage Act (DOMA) and  related marriage equality cases and petitions, is scheduled for conference by the United States Supreme Court.
• December 7, 2012: The U.S. Supreme Court agrees to hear challenges to California's Proposition 8 ban on same-sex marriage. The case is expected to be argued early in 2013, and will likely be decided by the end of June 2013. 
• June 26th, 2013: The U.S. Supreme Court ruled that supporters of the Proposition 8 did not have the legal standing to appeal the lower court's ruling. That left in place a trial court victory for two same-sex couples who had sought to marry. Neither the majority decision nor the dissent addressed the question of whether the Constitution allows states to prohibit same-sex marriages. In a separate case, the court struck down a key provision of the Defense of Marriage Act (DOMA) that denies federal benefits to legally married same-sex couples.

Television Spots for and against Proposition 8

These television advertisements were funded and produced by the political committees in favor of and in opposition to Proposition 8. Their inclusion here is for informational purposes only and is in no way meant to advocate one side or the other of the debate. 

• Yes on 8 TV Ad: "Whether You Like It Or Not"
• No on 8 TV Ad: "The Thorons - Don't Eliminate Marriage for Anyone"

Voter Information

Voter Information Guide

Campaign contributions database (Secretary of State website)

Campaign contributions database - total (Secretary of State website) Select "Nov. 2008 election" and "Prop.8" 

Public Opinion Resources

Survey USA polls
October 17, 2008 
October 6, 2008
September 25, 2008

Field Polls
October 31, 2008 
September 18, 2008
July 18, 2008
May 28, 2008

PPIC surveys
October 2008 
September 2008
August 2008

Other Information

Same-sex marriage timeline, 2004-08 (San Francisco Chronicle, published May 18, 2008 )

Ballotpedia entry on Prop 8

Gay marriages, county by county (Los Angeles Times)

Tracking Prop 8 contributions (Los Angeles Times)

Audio and Video

Center for Governmental Studies
Voter Minute