FAQs on Prop 8, California’s contested marriage amendment

Christian Examiner staff report


Why a federal case?
Opponents of Proposition 8 filed suit in state court immediately after the Nov. 2008 election seeking to block the voter-approved constitutional amendment. In May 2009, the California Supreme Court ruled 6-1 that the amendment was constitutional, but it also upheld the estimated 18,000 same-sex marriages that were performed during a six-month window when the marriages were legal. Days before the California Supreme Court ruling was released, however, a separate lawsuit was filed in federal court, alleging the measure violated the U.S. Constitution. Using the federal court system was an unusual tactic, though, because marriage has always been considered a states’ rights issue. The federal case, Perry v. Schwarzenegger, was the one presided over by U.S. District Judge Vaughn Walker.


What did Walker decide?
In his ruling, Walker decided that the California constitutional amendment declaring marriage as between one man and one woman violated the U.S. Constitution’s due process and equal protection rights of gays and lesbians by treating traditional marriage as “superior to same-sex couples.” “Plaintiffs seek to have the state recognize their committed relationships, and plaintiffs’ relationships are consistent with the core of the history, tradition and practice of marriage in the United States,” the judge wrote in his ruling.


What are the repercussions?
Walker, in overturning the will of California voters, became the first federal judge to rule there is a federal constitutional right for same-sex marriage. Three other states have legalized same-sex marriage by court order—Iowa, Connecticut, Massachusetts—but all were done through the state, not federal, judicial systems. The case is now being appealed to the 9th U.S. Circuit Court of Appeals, which has legal jurisdiction over nine Western states: California, Arizona, Nevada, Oregon, Washington, Idaho, Montana, Hawaii and Alaska. A randomly selected panel of three judges will hear the case. Attorneys representing Proposition 8 said the case could take anywhere from six months to a year to conclude.


What about the U.S. Supreme Court?
Whichever way the 9th Circuit court rules, the losing party has vowed to appeal to the U.S. Supreme Court. Unlike lower court appeals, an appeal to the U.S. Supreme Court is not automatic. The court must first agree to hear the case, which is likely considering the national implications of the matter. The court generally hears its cases each fall and then issues rulings for that session over the late spring and summer.

If Walker’s legal reasoning and ruling is upheld by the U.S. Supreme Court, then marriage would be redefined not only in California but also nationwide, reversing statutes and constitutional amendments in all 45 states that define marriage as between one man and one woman. That's been the goal of gay marriage supporters for years. In 2004, after 11 states passed marriage amendments on Election Day, Matt Foreman, then-executive director of the National Gay and Lesbian Task Force, told the Associated Press: “This issue is going to be resolved by the U.S. Supreme Court, and it's not going to give a (expletive) what these state constitutions say.”


Who will appeal?
The appeal was filed by the Alliance Defense Fund on behalf of Protect Marriage, which sponsored Proposition 8. Also appealing will be Advocates for Faith and Freedom on behalf of Imperial County, a rural farming community that borders San Diego County, Arizona and Mexico. Nearly 70 percent of the county’s voters approved Proposition 8 at the ballot box. Granting of an appeal, however, is not automatic. The 9th Circuit court must first determine if the parties have legal standing to file an appeal. Typically, the governor and the state attorney general would represent the voters’ interest in this case, but attorneys for both Gov. Arnold Schwarzenegger and Attorney General Jerry Brown have declined to present an active defense of the proposition. In fact, Brown wrote his own argument seeking the measure’s repeal, while Schwarzenegger opted to remain neutral in the matter.


How will this impact families?
From the beginning, supporters of Proposition 8 argued that changing the definition of marriage would erode parental and religious rights by making gay marriage a societal norm. In supporting their claims, Protect Marriage pointed to educational code changes made in other states where same-sex marriage was allowed. In those states, homosexuality is taught as a mainstream lifestyle and parents have no legal right to opt their children out of such teachings. Said Brian Brown, president of the National Organization for Marriage, “The goal of this movement is to use the law to reshape the culture so that disagreement with their views on sex and marriage gets stigmatized and repressed like bigotry. Children will be taught, whether parents like it or not, that traditional faith communities' views on marriage are based on hatred and bigotry.”


What about religious liberty?
Another concern of Proposition 8 supporters, especially among evangelical pastors, was the fear they could be forced to perform same-sex marriages or be prohibited from speaking or preaching against homosexuality. Although several states have clearly included language protecting churches from performing same-sex marriages, those exemptions could easily be repealed by the same legislatures that approved same-sex marriage to begin with. In addition, Walker’s own ruling seemed to trump the rights of gays and lesbians over religious rights when he wrote: “Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.” He included in his decision Southern Baptist resolutions on gay marriage (2003) and homosexuality (1999), as well as statements on homosexuality from the Roman Catholic Church, Evangelical Presbyterian Church, Free Methodist Church, Lutheran Church-Missouri Synod, and the Orthodox Church of America. All of the denominations point to Scripture in calling homosexuality sinful.


BP News Service contributed to this report.


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Published, September 2010

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