Legal challenges to Prop 8 ahead
Supporters of same-sex marriage conceded that California voters handed then a stunning setback Tuesday with the passage of Proposition 8 and filed two claims with the state Supreme Court seeking a hearing to overturn the 52.5 percent to 47.5 percent mandate, which amended the state Constitution to define marriage as only between a man and a woman.
The Yes on 8 campaign questioned the validity of the new legal strategy by same-sex marriage advocates and vowed to defend Prop. 8. The measure passed by an unexpectedly large 400,000 votes and had significant support among Catholic voters.
Andrew Pugno, legal counsel for ProtectMarriage.com, the coalition that sponsored Prop 8, called the complaints “frivolous and regrettable” and the legal angle “absurd.”
“We will vigorously defend the people’s decision to enact Proposition 8,” he said.
A court filing Wednesday by the San Francisco and Los Angeles city attorneys and the Santa Clara County counsel argued that “such a sweeping redefinition of equal protection would require a constitutional revision rather than a mere amendment,” according to a statement from San Francisco City Attorney Dennis Herrera’s office. “Article XVIII of the California Constitution provides that a constitutional revision may only be accomplished by a constitutional convention and popular ratification, or by legislative submission to the electorate.”
Prop. 8 “devastates the principle of equal protection” and threatens the rights of any potential electoral minority, Herrera said.
Amid confusion over the legal status of the 18,000 gay and lesbian weddings that have taken place in California since the Supreme Court’s ruling last May expanding the definition of marriage to include same-sex couples, the American Civil Liberties Union and Lambda Legal also moved for a new judicial debate. Prop. 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,” the claim by the two groups argues.
In a statement from New York, Lambda Legal Executive Director Ron Cathcart commented on the electoral losses for his group’s cause in California, Arizona and Florida. Reacting to the California court’s 5-to-4 decision, voters in all three states moved to block further judicial action on the definition of marriage affirming no marriage can be recognized in those states unless it is between a man and a woman.
“We are disappointed by the losses, but we are not discouraged,” Cathcart said. “We don't think they predict the future — in fact, they are the last gasps of the past.”
ProtectMarriage.com attorney Pugno said the new complaints are identical to claims the same groups made in an attempt to disqualify the measure from the November ballot. The Supreme Court summarily dismissed the claims July 16. “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,” Pugno said. “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.”
Ron Prenctice, chairman of ProtectMarriage.com, said the election is over and urged conciliation on both sides.
“While it will take a few weeks to finish counting all the votes, Prop 8 takes effect at midnight tonight,” he said in a statement. “Just as it was before the Supreme Court’s ruling, only marriage between a man and a woman will be valid or recognized in California, regardless of when or where performed.” “This has been a hard-fought campaign on both sides,” he added. “Now that the people of California have decided this issue, we hope there can be a healing among all and a continued respect for the diverse views that have been expressed during this campaign.”
Reversing the Supreme Court ruling that same-sex couples have the right to identify their unions as marriage, Prop 8 restored Proposition 22, the 2000 California initiative stating that only a marriage between a man and a woman is valid and recognized.
The 5-to-4 Supreme Court ruling making California only the second state to recognize gay marriage as a civil right prompted an outcry from faith groups and others who felt the judiciary overstepped by redefining the institution of marriage less than a decade after it had been reaffirmed in Prop. 22's electoral landslide.
The reaction led to a last-minute effort to qualify a new initiative for the ballot, funded in part by the Knights of Columbus and Catholic businesses in San Diego. The Yes on 8 campaign built slowly but ultimately matched supporters of same-sex marriage in pre-election polling, fundraising and media attention.
On Tuesday, Prop 8 pulled ahead in early balloting and never gave up the lead. Strong support in the Central Valley and San Bernardino and Riverside counties canceled out heavy opposition in the Bay Area. But even some Bay Area counties that overwhelmingly supported Sen. Barack Obama for president split on the marriage measure. Support for the measure in the No on 8 strongholds of San Francisco and Marin counties was greater than expected, said Tom Loarie, Contra Costa County campaign chairman for Catholics for the Common Good.
The Yes on 8 campaign started far behind in the polls in August but made strides in the last few weeks, Loarie said. “It was a remarkable to see how the momentum was building rapidly,” he said. “People were stopping their cars and jumping out. You could really feel the momentum was growing daily.”
Bishop Stephen E. Blaire, president of the California Catholic Conference, said the conference is “extremely pleased the voters of California chose to pass Proposition 8.”
“The yes vote on Proposition 8 acknowledges that the marriage of a man and a woman embraces their sexual complementarity as designed by nature and includes their ability to procreate,” he said in a Wednesday statement. “The yes vote on Proposition 8 also recognizes that the ideal for the well being of children is to be born into a traditional marriage and to be raised by both a mother and a father, even though in many circumstances the ideal is not possible,” the statement said.
“The success of Proposition 8 is not meant in any way to disparage those who disagree,” the Stockton bishop added, noting same-sex couples who register as domestic partners will continue to have the same rights, protections and benefits as married persons.
Bishop Blaire also said the state’s bishops were “deeply disappointed” that Proposition 4, the "Sarah's Law" initiative to require doctors to inform a parent, guardian or other family member before performing an abortion on a minor, had lost. The modified notification initiative crafted after two previous electoral failures fell short of a majority. The margin was 47.5 percent in favor to 52.5 percent opposed.
Proposition 6, the "Safe Neighborhoods" proposal, lost overwhelmingly with margins of up to 3-to-1 against it. The Catholic bishops of California endorsed Propositions 4 and 8, and opposed Prop 6.
Voters went to the polls with pre-election surveys showing Prop 8 trailing slightly but gaining momentum. The Yes on 8 campaign rallied voters not only in its strongholds in Southern California and the Central Valley but in every county. The campaign, sponsored by a coalition that included the California Catholic Conference, fielded 100,000 volunteers in the largest get-out-the-vote effort for an initiative in California history, spokesman Chip White said. Volunteers included thousands of Catholics working with other faith groups. "It's a huge ecumenical effort," said Bill May, chairman of Catholics for the Common Good.
Yes on 8 volunteers deployed to polling places and worked phone banks to call voters who had indicated support. No on 8 volunteers also were out in force, holding placards and handing out leaflets to voters entering polling places. Both sides raised more than $70 million and money poured in faster as the race tightened. On Oct. 31 and Nov. 1 alone, cash flowed into the Yes on 8 campaign at the rate of almost $18,000 an hour. The donations originated from 17 states and the District of Columbia.
"I'm pleasantly surprised by how much money the yes side was able to raise," May said, adding that Yes on 8 drew 76,000 donors of which all but 19 percent were from California.
May said a large factor for Yes on 8 was parental concern that the Supreme Court ruling would put their parenting in conflict with the law. Parents were upset that they would be seen as discriminatory in the eyes of their children if their teaching on marriage were to conflict with what the public schools might have to teach.
"Nobody wants to be considered discriminatory or bigoted under the law because of their faith," May said.
"This is being forced on us. This isn't about accepting lifestyles. It's about being discriminatory and having your children taught that its discriminatory to believe what we believe. The court made it discriminatory to promote marriage for mothers and fathers," May said.
The Yes on 8 campaign made the concern the centerpiece of its advertising in the last few weeks of the campaign. Campaign ads, including one repeating San Francisco Mayor Gavin Newsom's boast that same-sex marriage is coming "whether you like or not," claimed that public schools that elect to teach sex education will be required to teach about same-sex marriage under a provision that such programs must cover "respect for marriage."
The No on 8 campaign called the claim misleading. Hilary McClean, spokesperson for state Superintendent of Public Instruction Jack O’Connell, said schools that teach sex ed "are not required to say anything about marriage." She said it is up to each district to decide how to fulfill the marriage portion of the curriculum and added that parents may choose not to participate if they disagree with the instruction.
But Yes on 8 continued to keep the focus on education, telling voters in its last media push that the Supreme Court ruling "provided an opening for gay activists to force their agenda of sexual orientation education into our public schools."
No on 8 followed with a new ad, narrated by actor Samuel L. Jackson, reminding voters "of sorry times in California when groups of people were denied fundamental rights." The ad mentioned Japanese-Americans' confinement in internment camps during World War II.
The final message from No on 8 was an ad depicting Mormon missionaries invading a lesbian couple's home, accosting the women and tearing up their marriage certificate. Bishop Blaire condemned the ad as "a blatant display of religious bigotry and intolerance."
(By Rick DelVecchio)
