Legal Recourse for California Proposition 8

Van and PhillipIt looks as if California Proposition 8 is passing. Sigh. I don’t normally write about politics, but as a gay man, happily partnered with another man for almost 11 years now (my dear Phillip), I feel a need to say something. As you may know, Proposition 8 aims to amend the state constitution to say that “Only marriage between a man and a woman is valid or recognized in California”, thus eliminating the right of same-sex couples to marry in California.

Changing the state constitution may not be so easy, however. There are only two ways to amend the state constitution, and from what I can tell, Prop 8
should have been done as a “revision”, not an “amendment”. A revision requires a 2/3 vote of the legislature, or a constitutional convention, to start a ballot initiative that will change the state constitution. It’s not supposed to be so easy to make important changes, and Prop. 8 did not follow the proper process. Prop. 8 went with a signatures-only start, which is only appropriate for a minor change (ie. an amendment).

The California Supreme Court granted wide-ranging legal protection to our class this year, in clear legal wording that goes well beyond the single right that Proposition 8 addresses. Among other things, they said:

An individual’s sexual orientation — like a person’s race or gender — does not constitute a legitimate basis upon which to deny or withhold legal rights.

The California Supreme Court will get a chance to rule on this amendment, and it’s likely they will consider the elimination of rights for a protected class to be a major change to the state constitution, i.e. what is legally referred to as a revision, which would have required a 2/3 vote of the State Legislature before it could even be considered for a public vote. In this way, the court can rule that Prop. 8 is invalid.

For example, what if Prop. 8 had said “Only marriage between a WHITE man and WHITE woman is recognized in the State of California”? Naturally, these days, everyone understands that would be absurd. But, the court will likely treat Prop. 8 the same way that they would treat an amendment that took marriage rights from couples based solely on race. Race = gender = sexual orientation… all are now classes of individuals protected from discrimination, according to the highest court in California. Removing rights based on race would certainly be seen as a major change in the state constitution, and so will removing rights based on sexual orientation. With the court on our side, we have already won, our opponents just can’t see it yet.

And keep in mind that Prop 8 had a much smaller margin of victory than Prop 22 did 8 years ago (it won by 66% back then), and a 10%+ change in public opinion in 8 years is really quite amazing and represents a fast-moving trend. Naturally we will not give up this fight, and if amending the state constitution is so simple, it’s just a matter of time before our young folks (bless ‘em), reverse this some day with a new inclusive, right-granting initiative.

The year 2008 will still stand out as a year of progress for us. Our enemies are hanging on desperately, but despite their efforts, many of us are married already, our community is energized once again, and they have only been able to prolong the inevitable by another couple of years, at best.

10 Responses to “Legal Recourse for California Proposition 8”

  1. 1 Van Nov 5th, 2008 at 1:35 pm

    An update, I see that legal action is already underway.

  2. 2 Van Nov 5th, 2008 at 1:49 pm

    Someone asked me about what will happen to those gay couples who already married. As far as I know, this is a bit up in the air, since the amendment states that their marriages aren’t recognized, but some legal scholars say that such a thing cannot be retroactive. Here’s a great article about Prop 8 that addresses this and some of the other issues.

  3. 3 Jennie Nov 5th, 2008 at 1:50 pm

    Oh Van, THANK YOU. This is bringing tears of joy to my eyes. I have been so upset and depressed since last night, it’s not even funny. My temper has been consuming me and it’s taking all of my will power to not let it take over completely. I’m trying to hang onto hope, but had a hard time finding it. I felt so pissed off at all the Yes on H8 people for yanking away the hope and excitement I felt last night when President-elect Obama was elected! My feelings are bittersweet right now.

    But these details are the first I’ve read that give me more hope! I don’t want to have to wait years and years for this to be declared invalid and wrong, but I will wait it out however long it takes. I just hope it can happen much quicker than my fears think.

    Thank you. And by golly, if you ever know of or decide on which group would be the best to donate to for working on repeal Prop 8, please let me know!

    Jennie, a very happily married straight woman who supports and loves you and everyone

  4. 4 Jon Nov 5th, 2008 at 1:54 pm

    Obviously I don’t know much about the CA Constitution - I have my own preposterous and overly-amended state constitution to worry about back in Talibama - but looking at Article 1 and its language about ex post facto law and “obligation of contracts,” I don’t see how there’s a leg to stand on re: invalidating existing marriages under the law.

    As for the rest…let’s saddle up and ride.

  5. 5 Lily Nov 5th, 2008 at 2:38 pm

    I’m very disappointed that Prop. 8 passed… I can’t believe we still have SO MANY conservative CALIFORNIANS. I’m glad to see that a legal action is underway and more steps need to be done before this Prop. is written in CA constitution (Thanks, Van, for the explanation). Sigh. How can others not seeing this is a discrimination by passing the Prop.? But I have to be honest, my parents are ‘others’. We discussed it quite a few times and the result is that neither of us could convince one another. I don’t know how to make them see this issue just as ‘the color of our skin’.

  6. 6 Phillip Nov 5th, 2008 at 3:45 pm

    Hi Jennie,

    Thank you for your feelings and thoughts on the matter. There is much to be done as you have read here on Van’s blog. Hopefully there will be a change which will allow us as gay couples to marry. Something Van and I had talked about and wanted to do. We planned on waiting until after because we wanted to plan our wedding and invite our family and friends to witness our commitment to one another.

    You were asking on how to donate. There are two organizations that we have been donating to over the past few months, the first being a local GLBT Alliance, and the other is Human Rights Campaign.

    You’re a sweet heart,

    Big Hugs,

  7. 7 Van Nov 6th, 2008 at 6:10 pm

    Phillip and I were interviewed yesterday, and we appeared in a short segment on the evening news. The channel 8 news team was down at the Diversity Center and looking for gay couples to interview who would have gotten married during the next year if given the chance.

    We’ve been talking about marriage a lot together recently, and we agreed we didn’t want to rush down to the court house last month to get a marriage license. Instead, we’d like to do it in a way that involves our family and friends, and that takes planning, so we were willing to wait. The opportunity to get married will come around for us again, I feel pretty sure of that.

    You can watch the news segment here, we’re about 1 minute into it:
    KSBW 8: Local Voters React to Prop. 8 Passage
    They briefly showed a picture of Rubin and Michael with us years ago, but didn’t explain it. Quick editing job I imagine, I understand our reporter didn’t much sleep on election night. But hey, it’s our first TV appearance together!

  8. 8 Phillip Nov 10th, 2008 at 11:24 am

    Hi Dear,

    Here is a link you may add to your website. To get those that have expressed their disappointment about Prop 8 passing to sign a petition going to Governor Arnold Schwarzenegger.


  9. 9 Van Nov 12th, 2008 at 3:27 pm

    Check out Keith Olbermann’s special comment on gay marriage on MSNBC. I thought it was fantastic, he get emotional, yet puts it all pretty eloquently, and makes a great case for allowing gay people to marry.

  10. 10 Van Nov 14th, 2008 at 10:52 am

    Reflecting on the fact that Phillip and I cannot get married at the moment (a situation that will absolutely be remedied!), we’ve decided to show up tomorrow morning at 10:30am, for the nationwide Proposition 8 Protest.

    More info about this event is at

    Please feel free to join in at your local location!

    And, in the news, Santa Clara County has joined in the fight! I thought the arguments made by Ann Ravel, Santa Clara County counsel, in this statement were excellent.

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