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SAN DIEGO, Calif. — The California Supreme Court has agreed to review the validity of Proposition 8—the new constitutional amendment that recognizes only traditional marriage statewide—after three lawsuits were filed to block it. The court refused, however, to lift the ban on same-sex marriage while the court case proceeds.
Californians—riled by both a recent state Supreme Court decision overturning Proposition 22’s ban on same-sex marriage and an encroaching gay agenda in the public schools—regained their voice Nov. 4 by approving Proposition 8 by a 52 percent to 48 percent margin.
“I’m grateful to God for his timing on putting this (amendment) forward at the right time, on the heels of the Supreme Court decision (overturning Proposition 22),” said Ron Prentice, chairman of the Yes on 8 campaign.
The approval of Proposition 8 is a stunning defeat for gay-rights activists who have been using the courts and the state legislature to bypass the will of California voters since the passage of Proposition 22 in 2000.
The gay rights activists are again following suit—quite literally—with the first lawsuit filed on Nov. 5. In all, the court has agreed to hear three of the six cases that have been filed on the matter. Oral arguments could be heard as early as March, as the cases are fast-tracked because of its significance.
“We fully expected there would be a lawsuit,” Prentice said. “We had imagined they were planning to do so for months. But this was all done according to election codes and the laws of the state, and we expect (Proposition 8) to prevail.”
The main challenge echoes one used earlier this summer to try to block voters from deciding the issue by ballot. That argument alleges that the intent of Proposition 8 rises above a simple amendment and constituted a revision of the state constitution, which requires 2/3 approval by members of both houses of the legislature before it goes before voters. An amendment only requires a majority vote of the people through the initiative process.
Equality California, the lead group opposing Proposition 8, used a similar argument in June when it filed suit to keep the measure off of the November ballot. At that time, the state high court refused to hear the matter.
According to legal advisers for Proposition 8, similar arguments were used unsuccessfully against Proposition 13, the sweeping tax reform measure of 1978, legislative term limits and reinstituting the death penalty.
Confidence in measure
Andrew Pugno, lead attorney for the Protect Marriage amendment, said that although the justices declined to hear that case and as such did not consider the actual merits of the case, he is certain Proposition 8 will prevail. Prior to selecting wording for the amendment, the measure was written and reviewed by attorneys in anticipation of possible legal challenges.
“We’re very confident that their challenge will not be successful and Proposition 8 will be upheld,” the attorney said. “These (suits) are a last, desperate attempt to stop Proposition 8, but it’s a real long shot and the people should confident that their vote will be upheld.”
Opponents of Proposition 8 are also arguing that the court should intervene to protect a minority group from the whims of the majority.
“(Proposition 8) conflicts with the equal protection clause,” Gloria Allred, an attorney who filed the first lawsuit, said. “If marriage is now limited to straight couples and excludes gay couples, then it is inconsistent and in conflict with the equal protection clause.
“We will argue to the court that Prop. 8 is a disguised revision to the constitution…. We believe that then the court must hold that California may not issue marriage licenses to non-gay couples because if it does it would be violating the equal protection clause as straight couples would have more rights by being allowed to marry than gay couples.”
The challenges come despite a strong showing of voter support across the state. Voters in 42 of the state’s 58 counties approved the measure, leaving most of the No on 8 votes along the north and central coasts of California. The Nevada-border counties of Alpine and Mono also carried with No on 8 votes.
The only southern county to lean toward a No on 8 vote was Santa Barbara. Los Angeles County, where many in the entertainment industry lobbied against the measure, squeaked out a surprising Yes on 8 majority.
Yes votes were also cast in strong numbers from the African-American and Hispanic communities. Proposition 8 leaders said the favorable turnout in those communities reflect their strong religious beliefs and a concerted effort to target ethnic minorities through advertising, which included Spanish-language ads.
Expensive race
The landmark vote on Proposition 8 is believed to be the most expensive ballot issue in California history and drew millions in contributions from outside of the state. More than $74 million was pumped into the campaign from both sides.
Proposition 8, which contained similar language as Proposition 22, carries more weight than its predecessor because it writes the traditional marriage language into the state constitution. Because Proposition 22 only affected state law, the justices were able to toss it, citing constitutional concerns. Proponents of Proposition 8 say the new constitutional language places the measure outside of the jurisdictional arms of both the courts and the legislature.
Although No on 8 supporters raised several million dollars more than the Protect Marriage side, the fundraising effort of Yes on 8 was significant on several fronts. In more than two dozen similar ballot issues across the country, gay-rights groups raised more in campaign funding than traditional marriage supporters by at least a 3 to 1 margin. In addition, the bulk of the Yes on 8 money came from small donations; so many, in fact, that the secretary of state’s computer crashed when proponents tried to file state-mandated contribution reports—all 5,000 pages—electronically. Several large donations were received from Focus on the Family, the American Family Association, the Knights of Columbus and several wealthy benefactors.
Thousands of Mormons across the country, answering a call by church leadership to support the measure, infused the campaign with millions.
By comparison, the No on 8 campaign secured most of its money from gay-rights groups, the California Teachers Association and the American Civil Liberties Union. Other donations came from Apple, Yahoo, Google and PG&E, a publicly held utility in the Bay Area. Hollywood also played a major role in raising money to defeat the measure. Among those contributing were Brad Pitt, Ellen DeGeneres and Stephen Spielberg. One Hollywood fundraiser, featuring dinner with Barbra Streisand, generated $3.9 million from such notables as San Francisco Mayor Gavin Newsom, California Assemblymen Mark Leno and Fabian Núñez, state Attorney General Jerry Brown, Lt. Gov. John Garamendi and Los Angeles Mayor Antonio Villaraigosa.
The Hollywood money surge came after the Yes on 8 contributions outpaced their rivals early on, at one point as much as 6 to 1. In early October, Yes on 8 was nearly $10 million ahead in contributions. That success, coupled with improved polling numbers in favor of the amendment, prompted gay rights activists on Oct. 7 to take the unusual step of releasing their own internal polls, which at that point showed them trailing by 4 percentage points. Since the public plea by No on 8 officials, the campaign supporting gay marriage raised $22 million in just four weeks, compared with Yes on 8, which raised $10 million during the same time period.
Volunteer army
In addition to fundraising, Yes on 8 campaign leaders orchestrated a mammoth army of volunteers to counter the high-profile celebrity endorsements who opposed Proposition 8.
More than 1 million lawn signs were distributed and thousands of people volunteered to walk precincts and make telephone calls. Congregations assisted by launching phone banks using their church databases to inform voters of the potential religious freedom implications if same-sex marriage remained legal.
By the end of the campaign, more than 7,200 pastors had networked through e-mails and Webinars. Three simulcast rallies were also held, culminating Nov. 1 with the 12-hour prayer and fasting assembly at Qualcomm Stadium in San Diego. That event drew between 20,000 and 30,000 people who prayed for repentance, revival and intervention for the upcoming election.
“This would not have happened without the tens of thousands of people who both volunteered and gave sacrificially to support this very expensive campaign,” Prentice said.
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