Revisiting Prop 8

On March 5, the California Supreme Court began its hearings for its decision on the constitutionality of Proposition 8, passed as a referendum by California voters, in November, 2008, affirming that marriage is to be defined  as between a man and a woman. Proposition 8 was supported by 52% of the voters. Whatever the court decides, the quandary about same-sex marriages is not likely to go away.

In May 2008, the California Supreme Court, by a vote of 4-3, allowed gay marriages. In so doing, it voided Proposition 22, passed in 2000, which affirmed marriage was between a man and a woman. Proposition 22—which unlike Proposition 8 was not a constitutional amendment--had garnered a 62% affirmative vote. The court decision in that case (cf. In re Marriage) based its conclusion for allowing same-sex marriages on two premises. The first premise is that the right to marry is one of the fundamental constitutional rights. As the majority opinion put it: “The constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so  integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the legislature or by the electorate through the statutory initiative process.”

Advertisement

The second premise was that “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.” Indeed, given past discriminations and powerlessness of a minority, any discrimination is “ suspect” and must be subject to “strict scrutiny,” especially if a statute  impinges upon a fundamental right. Only a compelling state interest could allow differential treatment. The majority held that, notwithstanding California law recognizing domestic partnerships, to which accrue all of the substantive rights and responsibilities of “spouses,” the refusal to grant marriage involved an infringement on the equal respect and dignity of same-sex couples under the law. Domestic partnerships, short in history and vague as to their meaning to most of the populace, did not confer on same-sex partners and their children (same sex couples in California have 70,000 children) equal dignity and respect under the law.

In her dissent, Justice Carol Corrigan (who indicated she is actually in favor of same-sex marriage) argued that the court’s judicial activism on the question was unjustified. She dissented from the argument that the question demanded “strict scrutiny,” since domestic partnerships do provide fundamentally equal, if separate, status for same-sex couples. She noted that were this not so, she would be more open to a judicial look at civil unions versus marriages. But Corrigan claimed that such a sweeping reform “should go forward in the legislative sphere and in society at large. When ideas are imposed, opposition hardens and progress may be hampered.”
The court is now being asked to adjudicate on four related questions. The first issue is whether Proposition 8 was a simple amendment to the Constitution (which only demands a simple majority of the voters) or a revision (which demands both legislative passage and, then, a majority of voters to approve). The California legislature would not, at present, pass anything like Proposition 8. Indeed, recently, a majority of both houses voted a resolution attacking Proposition 8 and claiming it was a revision, not an amendment.

A revision differs from an amendment in have a sweeping impact (usually about a question of governance or separation of powers). In ten cases which have come before the court to rescind an initiative, because it was really a revision rather than an amendment and, therefore, suspect as procedure, the court has only accepted the argument three times. The court refused to take up a challenge to Proposition 8 before it was approved in the election. The challenge had claimed it was procedurally suspect and should be voided, before the election, since it should be seen as a revision.  Historically, the court has mainly seen revisions as attacking the fundamental structures of government (whose main purpose is to safeguard liberty). Theresa Steward, the lawyer for the city of San Francisco, succinctly argued on this ground:” If we protect the structures of government but leave all liberties to simple majority vote, then we are safeguarding the moat while allowing the castle to burn down” The distinction between a revision and an amendment in California law is murky enough to allow the court to declare it a revision. Few, however, think the court will declare Proposition 8 a revision. That would have been its easiest recourse.

The hearings held in March led most pundits to predict that the court would let Proposition 8 stand in the Constitution but be chary about retroactively invalidating the 18,000 same-sex marriages which occurred in 2008. Even conservative Justice Baxter (who opposed In Re Marriage) noted that those who had married had “received the right by the highest court in the state.”  Of course, letting some same-sex marriages stand, while not allowing others, does raise a significant substantive question about equality under the law. A similar objection could be made to a New York law which recognizes same-sex marriages from other jurisdictions but disallows same-sex marriages to be performed in New York. On what basis this inequality before the law?

The Attorney General, Edmund Brown Jr., has claimed that the real question is one of inalienable rights and whether a legislature or referendum can infringe them. The court did not seem, in the hearings, open to this line of argument, although, paradoxically, in a sense, that was the argument of the majority in In re Marriage. Disturbing to me in the hearings was some easy talk about the sovereign right of the electorate, as if liberties could be subject to majority vote. Kenneth Starr, the lawyer for the proponents of Proposition 8, seemed to think a referendum could deny free speech or, perhaps, take away domestic partnership. Hopefully, the court’s ruling will clarify this issue. It is clear to me that the ease of amending the California Constitution (by a simple majority vote) is scandalous. For that reason I voted against Proposition 8, as I vote against all referenda to amend the Constitution by a simple majority.        

To me, the most disturbing line of questioning by Justice Ming Chin (who dissented from In re Marriage) points to one way out of the conundrum. Chin asked if it would be fair to uphold Proposition 8 (as the sovereign will of the electorate) but require the state to replace the term marriage by the term civil union for all relationships. The In re Marriage majority had already seeded this line of questioning. In arguing for equality under the law for  same-sex couples, the majority said that its options, in protecting equality before the law, were either to allow same sex couples to marry or to change the title for all “ marriages” to something like civil unions. It stated that the first choice was the less drastic.

I can not, personally, foresee any worse decision than this robbing of the term marriage. It has a rich resonance about commitment, even in adversities, of love, care. It has a kind of history, on which the state can rely, that some new term could never easily garner. Nor is marriage, intrinsically, a religious term. If I had to choose between granting same-sex couples the right to marry or deciding to deny the term marriage to all relationships in the name of equality, I would, for the sake of societal welfare, clearly choose the first option. Finally, whatever the court decides, a number of voters in California are poised, if necessary, to go back to the referendum process to vote out Proposition 8.

John Coleman, S.J.

Comments are automatically closed two weeks after an article's initial publication. See our comments policy for more.
8 years 8 months ago
I'm sure those who voted for Prop 8 had read the decision in re: marriage cases. In it, the justices go into great detail as to why a separate designation causes appreciable harm to gay couples. Proposition 8 merely defined a word. Since the strict scrutiny standards still applies, and the people have removed the option of extending marriage rights to gays and lesbians, the obvious result is that the remaining marriage laws are declared unconstitutional. If 'Civil Unions' are fine for gays and lesbians, then certainly the People won't object when that terminology would be applied to them as well. When the justices rule as such, it will be based on the constitution that the People enacted. Do you wonder why Ken Starr referred to them as uninformed and unenlightened during the hearings?
8 years 8 months ago
Wouldn't Prop. 8 be simply clarifying the intent of the constitution, not re-defining it? After all, never was marriage thought of except between a man and a woman. Re-defining it is what the same-sex union/marriage folks want to do. By the way, why don't you use the argument that had there been same sex marriage then the scorge of AIDS would never have happened. After all, wasn't HIV spred due to promiscuity and mainly between sam-sex multi-partnering?
8 years 8 months ago
http://www.sdnewsnotes.com/ed/articles/2006/0601nn.htm
8 years 8 months ago
Mr Bindner, Yes, marriages are contracted by the couple before God (in the Latin-rite understanding at least, I am unsure of the East's stand), but one still has to do what marriage is. All sacraments are covenant actions taken in the sight of God, marriage is unique only in that the ministers are also the recipients. To confect the sacraments, one must do what the sacrament is in the way the sacrament is performed. Same-sex marriage is incapable of accomplishing that. Now, i know not everyone is Catholic. However, the sacraments are patterned on common human experiences and remain relatively consistent with them (washing, eating, etc). Marriage existed before the Church, but Christ elevated it to a sacrament. The requirements for marriage didn't change from the pre-christian form to the Christian form (except in the addition of perfections such as permanence and monogamy). In no way, shape, form, time, place is same sex marriage possible. In no way, shape, form, time, place is same sex attraction not disordered. In no way, shape, form, time, place is homosexual activity not sinful (though, again, no more of a grave sin than any other). Period. This is a Jesuit publication. As one who was taught by them, I don't understand why this issue is difficult. It is hard for those afflicted with disordered impulses, yes, but the Church is very willing to help them with that cross if the individuals would just accept that it is a cross.
8 years 8 months ago
Anne--or Nancy; I'm sorry, I get the two of you confused, and you sound so much like Anne and Nancy Danielson that I get even more confused by your postings--could you please explain the url you chose to add to this conversation? Thanks for helping me understand your point in directing us to that url.
8 years 8 months ago
There is, at its root, an emotional component of the gay marriage debate that is insurmountable for homosexuals: most heterosexuals are convinced that there is something morally debased and revolting about same sex sex. Indeed, that same sex sex is morally illicit is the position of the Catholic Church (as expressed in ''Always Our Children''). Yet, in the public sphere, we are supposed to pretend that this revulsion either doesn't exist or isn't grounded in something real, and is irrelevant to the debate. I watch in fascination as the language of civil rights, human dignity, and inalienable rights is applied in favor of same sex marriage. I watch in fascination as individuals who do not feel revulsion about same sex sex express the sentiment that there is no downside to same sex marriage for society, only an upside for the same sex partners and those that love them. I am convinced that eventually same sex marriage will be incontrovertibly proven to be a bad idea. In the meantime, those of us who oppose it lurch about in search of acceptable arguments to support a core understanding.
8 years 8 months ago
William, it is what it is.
8 years 8 months ago
Marriage is not just a word. That is sort of the point. Marriage is not a mere civil-legal union, not just a contract. Even in a secular context, I think people would generally agree with that. There is no right, need, justification, or reason to allow for Same-sex Marriage. That is the clear point of Prop 8 and previous laws on the matter. I can begrudgingly accept a fully secular, legally motivated, civil union arrangement, but it's not marriage and cannot be confused with it. It would be abusive to force people who actually have a marriage to accept being treated as if they do not. The court should stop standing in the way of the will of the people. This is not the modern Civil Rights battle, they are not defending fundamental rights of a oppressed minority, since (though oppressed, and that is shameful since we are all sinners, and their sin is no more grave than any other mortal sin) the "right" they want is not the right they are claiming (Same-sex relationships are different in kind than heterosexual monogamy).
8 years 8 months ago
John Coleman, as a Priest, how does one change the Truth about God's intention for Marriage and the Family from the beginning?
8 years 8 months ago
This issue is eventually going to go to the US Supreme Court. The only question is whether this case will be the vehicle to send it there. All the marriage amendments are susceptible to an equal protection challenge, although the Human Rights Campaign seems to be waiting for Scalia and Thomas to leave the Court first. If they were sure of six votes, they might go ahead. If Alito and Roberts had given any indication of support for Lawrence v. Texas, I am sure the HRC would be in Court now seeking to overturn every state restriction on marriage. It is only a matter of time.
8 years 8 months ago
On the religion angle, we are taught in marriage preparation class that marriages are made by the couple before God, with the Priest as a witness for the community. I fail to see why this is true for heterosexuals and not homosexuals. Further, it seems that no Church action can stop the reality of gay marriage. What the Church can do is celebrate gay weddings (whether the legal term is marriage or civil union). In a marriage, the family loses familial rights to the new spouse. Weddings allow them the acknowledgement of that - as well as the opportunity to pray for the new family unit. The refusal of the Church to celebrate these unions, then, is more and insult to the families - most of whom are not gay.
8 years 8 months ago
Shall we now call it "The Civil Union Feast at Cana"? "Civil Union a la Mode" by Dryden? Look in a library catalogue for titles beginning with the word "marriage" to realize how silly is this discussion? What of civil unions within the prohibited degrees? How many civil unions will be permitted per person? And all this to calm a sense of inferiority felt by some people in California at the use of the word "marriage"?
8 years 8 months ago
The term "disordered" itself is flawed. There is no natural order outside of human experience and nature. God and the Church are not, in some mystical way, bound to enforce such a thing. God is perfect and does not depend on our adherance to any particular standard of morality. Because this is so, the Magisterium has created the sophistry known as the "natural order" that is somehow absolute. It is not. Rather, it is dependent on our understanding of human nature, which is changing in regard to homosexuality. Sexuality is a gift from God. If someone is intrinsically homosexual, denying them this gift in the context of a stable relationship is itself sinful. Marriage as a legal institution is about to change to give gay couples the right to shut out their families of origin. Legally, they shall be "one flesh" which means that they are interchangeably the same person. The Church will have to recognize this and minister to the need of families for a wedding one way or the other.
8 years 8 months ago
Anne: do you really hope to advance your viewpoint with that snarky response to William's legitimate question? I, too, read what you recommended and see absolutely no connection to the subject at hand.
8 years 8 months ago
Matthew, when you can admit that revulsion to same sex sex is hardwired as part of your sexual identity - and that homosexuality is hard wired in the same way - then perhaps you can grow beyond it and accept same sex sex as natural for the homosexuals. This is likely the lesson from above that the Holy Spirit is trying to teach the Church.

Advertisement

Don't miss the best from America

Sign up for our Newsletter to get the Jesuit perspective on news, faith and culture.

The latest from america

A 14-year-old boy receives medical treatment at Suez Canal University hospital in Ismailia, Egypt, Friday, Nov. 24, 2017, after he was in injured during an attack on a mosque (AP Photo/Amr Nabil).
The pope described the attack as a “wanton act of brutality directed at innocent civilians gathered in prayer.”
Gerard O’ConnellNovember 24, 2017
“The Senate proposal is fundamentally flawed as written and requires amendment,” said Bishop Frank J. Dewane in a Nov. 22 letter to senators.
Pope Francis greets people at the “Regional Hub,” a government-run processing center for migrants, refugees and asylum seekers, in Bologna, Italy, Oct. 1. (CNS photo/L’Osservatore Romano)
Although he named no countries, Vatican observers believe he is referring especially to political leaders in several western and eastern European countries.
Gerard O’ConnellNovember 24, 2017
For Thanksgiving, we give you an inside look into what Jesuit basketball teams to watch out for this season.
Olga SeguraNovember 24, 2017