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“By this interpretation, either marriage should legally exist for all persons or for none.”
by Brittany Wilson
On March 5th the California Supreme Court heard oral arguments against the passing of Proposition 8 and now has 90 days to make a final decision. The 3-hour hearing covered a multitude of implications that ambiguous language within the proposition left up to interpretation.
The main argument the court referred to throughout  the hearing was whether Prop 8 was an amendment or a revision to the constitution. An amendment can pass by a simple majority vote, but a revision requires approval by two-thirds of each state house, followed by a majority vote. The first speaker was the legal director for the National Center for Lesbian Rights, Shannon Minter, who asserted that an amendment must be consistent with existing principles of the Constitution, while a revision substantially changes the existing purposes of the Constitution.
Minter argued that Proposition 8 changed the constitution in order to specifically take away the rights of same-sex couples to marry, putting it in the category of a revision, which requires the most intense scrutiny from the courts before it can be passed.
He said, “Our government is based on the principle not just of majority rule, but also on the limit that majority must always respect minority rights. That balance between majority and minority rights is recognized around the world as the hallmark of our democratic system.”
The court noted that it might just be too easy to amend the California Constitution, which has been amended more than any other state’s except Louisiana. They did, however, seem to support the idea that historically, amendments improve upon existing laws and benefit society as a whole, while revisions are more likely to upset rights.
Justice Chin proposed a hypothetical solution that had been submitted by two academics, one who voted for and one against Prop 8. They suggested that since marriage is a religious sacrament, the Court has no power to say who can or cannot marry. All marriages would be civil unions in the eyes of the Court, and people would need to seek out their own religion’s avenues for obtaining a true sacramental marriage.
Chin asked Michael Maroko, a Los Angeles lawyer for gay couples, if the Court should “get out of the marriage business.” Maroko responded, “If you’re in the marriage business, do it equally. If you aren’t going to do it equally, get out of the marriage business.”
The Court returned several times to questions that suggested Prop. 8 does little more than stop same-sex couples from using the term “marriage” to describe their union, reminding the speakers that all rights for domestic partnerships are left intact.
Minter was asked twice to explain the importance of same-sex couples not being allowed to use the same nomenclature as straight married couples. He deftly retorted, “The nomenclature is not the point. The point is the equality requirement. [The Constitution] may or may not be required to provide the word marriage to everyone, but what is required is the term be applied equally to all persons.”
By this interpretation, either marriage should legally exist for all persons or for none. Giving a minority separate terminology for what is essentially the same behavior, accompanied by the same set of rights, serves no purpose other than segregating and alienating the minority.
Proponents of Proposition 8 argue that since domestic partnerships’ rights are left in tact, the real squabble is over the sharing of the word “marriage.” But is it believable that the Yes on 8 campaign would spend millions of dollars for ownership over a word?
Minter goes on to explain, “Relegating same-sex couples to domestic partnerships does not provide them with everything but a word. It puts those couples in a second class status, it marks them as second class citizens, and it deprives them of dignity and privacy.”
The proponents paint a petty picture of the situation at hand, minimizing the true effect such discrimination will have on society.
Proposition Discriminatory
Proposition 8 essentially writes discrimination into the California Constitution, thereby greatly weakening the Equal Protection Clause, part of the Fourteenth Amendment of the United States Constitution. This clause reinforces the country’s commitment to the belief that “all men are created equal” and should receive the same set of rights.
One could make the argument that if Proposition 8 stands, it will be at the cost of the Equal Protection clause, which would be nullified at the addition of such a discriminatory law. This should be of great concern to the Court, as throwing out the Equal Protection Clause would shatter everything the Constitution stands for.
Opponents also make the point that if it’s such a simple term, why can’t it be shared by all citizens equally? What is the real reason that advocates of Proposition 8 will do almost anything, including spending millions of dollars and making the fight their full time job, to prevent gay couples from becoming married couples?
It seems almost so simple that it has been overlooked: discrimination. The proverbial elephant in the room during the oral arguments was the notion that the only reason straight people don’t want to share marriage with gay couples is because they believe homosexuality is morally wrong and therefore unworthy of being recognized as marriage.
It’s bewildering how the Yes on 8 campaign has succeeded in propagating hate and discrimination by using the most elusive of euphemisms. They convinced thousands of Californians that heterosexual marriage needed defending, when it was never under attack. The real issue is how we let such specific religious values be inserted into our Constitution.
Another issue continually touched upon throughout the hearings was the validity of the 18,000 marriages performed prior to the passing of Prop 8. It comes down to dissecting the entire proposition: “Only marriage between a man and a woman will be recognized in the State of California, regardless of when or where performed.” Those last six words are cause for concern.
They Want To Destroy Marriages
Prop 8 supporters are seeking to nullify 18,000 marriages, but the Court seemed to suggest this couldn’t happen. The proposition was proactive, not retroactive, which gay rights lawyer Therese Stewart pointed out.
She stated, “The language of the proposition would have to contain clear intent of being retroactive, which it was not. The people did not know when they were voting, that they would be voting on nullifying marriages that had already taken place.”
Justice Kennard made an excellent point when she suggested that the people of California should be able to rely on the law as it stood in the past. Because the language of the clause leaves out retroactive specifics, it seems as though the 18,000 same-sex marriages will stand. Whether or not they will fuss with the nomenclature is another story.
The court has 90 days to mull over the arguments of both sides and issue a response. The absurdity of voting on the religious sacrament of marriage has become an unfortunate modern reality.
Dennis Herrera, city attorney for San Francisco, sums the situation up nicely: “Proposition 8 did something that no constitutional amendment has ever succeeded in doing in California history, to strip a fundamental right from a protected class of citizens. If allowed to stand, Prop 8 devastates the principle of equal protection and endangers constitutional rights of any potential electoral minority.”
Brittany Wilson is a Portland-based freelance journalist.
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