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Proposition 8 (or the California Marriage Protection Act) was a ballot proposition and constitutional amendment passed in the November 2008, state elections. The measure added a new provision, Section 7.5 of the Declaration of Rights, to the California Constitution. The new section reads:

Only marriage between a man and a woman is valid or recognized in California.[1][2][3]

By restricting the definition of marriage to opposite-sex couples, the proposition overturned the California Supreme Court's ruling of In re Marriage Cases that same-sex couples have a constitutional right to marry. The wording of Proposition 8 was precisely the same as that which had been found in Proposition 22, which, as an ordinary statute, had been invalidated by the Supreme Court. California's State Constitution put Proposition 8 into immediate effect the day after the election.[4] The proposition did not affect domestic partnerships in California [5] or same-sex marriages performed before November 5, 2008.[6][7][8]

Proponents of the constitutional amendment argued that exclusively heterosexual marriage was "an essential institution of society," that leaving the constitution unchanged would "result in public schools teaching our kids that gay marriage is okay," and that "gays ... do not have the right to redefine marriage for everyone else." Opponents argued that "the freedom to marry is fundamental to our society," that the California constitution "should guarantee the same freedom and rights to everyone" and that the proposition "mandates one set of rules for gay and lesbian couples and another set for everyone else." They also argued that "equality under the law is a fundamental constitutional guarantee" (see Equal Protection Clause).[9]

The campaigns for and against Proposition 8 raised $39.9 million and $43.3 million, respectively, becoming the highest-funded campaign on any state ballot that day and surpassing every campaign in the country in spending except the presidential contest. After the elections, demonstrations and protests occurred across the state and nation. Same-sex couples and government entities filed numerous lawsuits with the California Supreme Court challenging the proposition's validity and effect on previously administered same-sex marriages. In the Strauss v. Horton case, the court upheld Proposition 8, but allowed existing same-sex marriages to stand (under the Grandfather clause principle). Additional lawsuits in federal courts are still pending.

Contents

History of the ballot initiative

Proposition 8 was a California ballot proposition that sought to change the California Constitution to add a new section (7.5) to Article I, that would read: "Only marriage between a man and a woman is valid or recognized in California."[1][2][3] This change would restrict the definition of marriage to opposite-sex couples, and eliminate same-sex couples' right to marry, thereby overriding portions of the ruling of In re Marriage Cases by "carving out an exception to the preexisting scope of the privacy and due process clauses"[10] of the state constitution. As of November 2009, when legislation legalizing same-sex marriage in Maine was defeated by referendum, same-sex marriage had been defeated in all 31 states in which it had been directly put to a popular vote.[11]

To qualify for the ballot, Proposition 8 needed 694,354 valid petition signatures, equal to 8% of the total votes cast for governor in the November 2006 General Election. The initiative proponents submitted 1,120,801 signatures, and on June 2, 2008, the initiative qualified for the November 4, 2008 election ballot through the random sample signature check.[12]

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Pre-election legal challenges

Petition to remove proposition from ballot

On July 16, 2008, the California Supreme Court denied a petition calling for the removal of Proposition 8 from the November ballot. The petition asserted the proposition should not be on the ballot on the grounds it was a constitutional revision that only the Legislature or a constitutional convention could place before voters. Opponents also argued that the petitions circulated to qualify the measure for the ballot inaccurately summarized its effect. The court denied the petition without comment.[13] As a general rule, it is improper for courts to adjudicate pre-election challenges to a measure's substantive validity.[14] The question of whether Proposition 8 is a constitutional amendment or constitutional revision was ruled on by the California Supreme Court on May 26, 2009, and found that it was not a revision and therefore would be upheld. They also declared that the same-sex marriages performed prior to the passing of Prop 8 would remain valid.[15]

Challenge to title and summary

The measure was titled: "Eliminates Rights of Same-Sex Couples to Marry. Initiative Constitutional Amendment." The ballot summary read that the measure "changes the California Constitution to eliminate the right of same-sex couples to marry in California."[16][17]

Proponents of the measure objected to the wording of the ballot title and summary on the grounds that they were argumentative and prejudicial. The resulting legal petition Jansson v. Bowen[18] was dismissed August 7, 2008, by California Superior Court Judge Timothy M. Frawley, who ruled that "the title and summary includes an essentially verbatim recital of the text of the measure itself",[19] and that the change was valid because the measure did, in fact, eliminate a right upheld by the California Supreme Court.

California Attorney General Jerry Brown explained that the changes were required to more "accurately reflect the measure" in light of the California Supreme Court's intervening In re Marriage Cases decision.[20]

On July 22, 2008, Proposition 8 supporters mounted a legal challenge to the revised ballot title and summary, contending that Attorney General Brown inserted "language [...] so inflammatory that it will unduly prejudice voters against the measure".[21] Supporters claimed that research showed that an attorney general had never used an active verb like “eliminates” in the title of a ballot measure in the past fifty years in which ballot measures have been used.[21] Representatives of the Attorney General produced twelve examples of ballot measures using the word "eliminates" and vouched for the neutrality and accuracy of the ballot language.[22][23]

On August 8, 2008, the California Superior Court turned down the legal challenge, affirming the new title and summary, stating, "[t]he title and summary is not false or misleading because it states that Proposition 8 would 'eliminate the right of same-sex couples to marry' in California. The California Supreme Court unequivocally held that same-sex couples have a constitutional right to marry under the California Constitution."[20][24] That same day, proponents of Prop. 8 filed an emergency appeal with the state appeals court. The Court of Appeal denied their petition later that day and supporters did not seek a review by the Supreme Court of California.[25][26] The deadline for court action on the wording of ballot summaries and arguments in the voter pamphlet was August 11, 2008.[27]

While turning down the challenge to the title and summary, the California Superior Court also found that the Yes on 8 campaign had overstated its ballot argument on the measure's impact on public schools and ordered a minor change in wording. The original arguments included a claim that the Supreme Court's legalization of same-sex marriage requires teachers to tell their students, as young as kindergarten age, that same-sex marriage is the same as opposite-sex marriage. The court said the Yes on 8 argument was false because instruction on marriage is not required and parents can withdraw their children. The court said the ballot argument could be preserved by rewording it to state that teachers "may" or "could" be required to tell children there is no difference between same-sex and opposite-sex marriage.[24]

Campaign

Campaign funding and spending

By Election Day, volunteers on both sides spent thousands of hours getting their messages across to the state's 17.3 million registered voters.[28][29] The campaigns for and against Proposition 8 raised $39.9 million and $43.3 million, respectively.[30] Contributions totaled over $83 million from over 64,000 people in all fifty states and more than twenty foreign countries, setting a new record nationally for a social policy initiative and trumping every other race in the country in spending except the presidential contest.[31] Contributions were much greater than those of previous same-sex marriage initiatives. Between 2004 and 2006, 22 such measures were on ballots around the country, and donations to all of them combined totaled $31.4 million, according to the nonpartisan National Institute on Money in State Politics.[32] A ProtectMarriage.com spokeswoman estimated that 36 companies which had previously contributed to Equality California were targeted to receive a letter requesting similar donations to ProtectMarriage.com.[33][34][35][36]

Proponents

Official ProtectMarriage.com "Yes on 8" campaign sign.[37]

The ProtectMarriage.com organization sponsored the initiative that placed Proposition 8 on the ballot[38] and continues to support the measure. The measure also attracted the support of a number of political figures and religious organizations.

Political figures

Republican presidential nominee and U.S. Senator John McCain released a statement of support for the proposed constitutional amendment.[39] Former Speaker of the House Newt Gingrich released a video in support. Both characterized the court ruling requiring recognition of same sex marriage as being against the will of the people.[40] Other notable supporters include Republican State Senator Tom McClintock and 20 other Republican State Senators and Assemblymembers.[41]

Religious organizations

The Roman Catholic Church,[42] as well as a Roman Catholic lay fraternal organization, the Knights of Columbus,[43] staunchly supported the measure. The bishops of the California Catholic Conference released a statement supporting the proposition,[44] a position met with mixed reactions among church members, including clergy.[45][46]

Rally for Yes on Prop 8 in Fresno

The Church of Jesus Christ of Latter-day Saints,[47][48][49] whose members are commonly known as Mormons, also publicly supported the proposition. The First Presidency of the church announced its support for Proposition 8 in a letter intended to be read in every congregation in California. In this letter, church members were encouraged to "do all you can to support the proposed constitutional amendment by donating of your means and time." Local LDS leaders set organizational and monetary goals for their membership—sometimes quite specific—to fulfill this call.[50][51] The response of the LDS membership to their leadership's appeals to donate money and volunteer time was very supportive,[52] such that Latter-day Saints provided a significant source for financial donations in support of the proposition, both inside and outside the State of California.[53] About 45% of out-of-state contributions to ProtectMarriage.com came from Utah, over three times more than any other state.[54] ProtectMarriage, the official proponents of Proposition 8, estimate that about half the donations they received came from LDS sources, and that "eighty to ninety percent" of the early volunteers going door-to-door were LDS.[55] The LDS Church produced and broadcast to its congregations a program describing the support of the Proposition, and describing the timeline it proposes for what it describes as grassroots efforts to support the Proposition.[56]

Other religious organizations that supported Proposition 8 include the Union of Orthodox Jewish Congregations of America,[57] Eastern Orthodox Church,[58] a group of Evangelical Christians led by Jim Garlow and Miles McPherson,[59] American Family Association, Focus on the Family[60] and the National Organization for Marriage.[61] Rick Warren, pastor of Saddleback Church, also endorsed the measure.[62]

Others

The Grossmont Union High School District in San Diego County, California, publicly voted on a resolution endorsing Proposition 8. The Governing Board voted 4–0 to endorse the amendment of the California State Constitution.[63]

The Asian Heritage Coalition held a rally in support of Proposition 8 in downtown San Diego on October 19, 2008.[64]

During the November 2008 election campaign, Porterville's City Council was the only City Council in California that passed a Resolution in favor of Proposition 8.[65]

"Whether You Like It or Not" advertisement

In the months leading up to Election Day, Proposition 8 supporters released a commercial featuring San Francisco Mayor Gavin Newsom stating in a speech regarding same-sex marriage: "This door's wide open now. It's going to happen, whether you like it or not."[66] Some observers noted that polls shifted in favor of Proposition 8 following the release of the commercial; this, in turn, led to much speculation about Newsom’s unwitting role in the passage of the amendment.[67][68][69]

Opponents

Official "Vote NO on Prop 8" logo

Equality for All was the lead organization opposed to Proposition 8.[70] They also ran the NoOnProp8.com campaign.[71] As with the measure's proponents, opponents of the measure also included a number of political figures and religious organizations. Some non-partisan organizations and corporations, as well as the editorial boards of many of the state's major newspapers, also opposed the measure.

Political figures

San Francisco Mayor Gavin Newsom speaks at an Anti-Proposition 8 Rally on Sproul steps at UC Berkeley

While former Democratic presidential nominee and U.S. Senator, Barack Obama stated that he personally considers marriage to be between a man and woman,[72] and supports civil unions that confer comparable rights rather than gay marriage,[73] but stated that he opposed "divisive and discriminatory efforts to amend the California Constitution... the U.S. Constitution or those of other states."[74] Democratic vice-presidential candidate Joseph Biden also opposed the proposition.[75] Republican California Governor Arnold Schwarzenegger stated that although he opposed and twice vetoed legislative bills that would recognize same sex marriage in California, he respected and would uphold the court's ruling and oppose the initiative and other attempts to amend the state's constitution.[76][77] The U.S. House Speaker, California Representative (8th District), Nancy Pelosi[78] along with twenty other members of the 53 member California congressional delegation and both of California's U.S. senators, Dianne Feinstein and Barbara Boxer, voiced their opposition to Proposition 8.[79] Also voicing their opposition were the Lieutenant Governor, State Controller John Chiang, former governor and Attorney General Jerry Brown, 42 of 80 members of the state assembly, half of the state senators, and the mayors of San Francisco, Los Angeles, and San Diego: Gavin Newsom, Antonio Villaraigosa, and Jerry Sanders, respectively.[80][81][82][83]

Religious organizations

All six Episcopal diocesan bishops in California jointly issued a statement opposing Proposition 8 on September 10, 2008.[84] Southern California's largest collection of rabbis, the Board of Rabbis of Southern California, voted to oppose Proposition 8.[85] Other Jewish groups who opposed Proposition 8 include Jewish Mosaic,[86] the American Jewish Committee, Progressive Jewish Alliance, National Council of Jewish Women, and the Anti-Defamation League.[57] Los Angeles Jews were more opposed to Prop 8 than any other religious group or ethnic group in the city. Jewish Angelinos voted 78% against the measure while only 8% supported the measure; the remainder declined to respond.[87] The legislative ministry of the Unitarian Universalists opposed Proposition 8, and organized phone banks toward defeating the measure.[88]

In addition, the California Council of Churches issued a statement urging the "immediate removal of Proposition 8" – saying that it infringes on the freedom of religion for churches who wish to bless same-sex unions.[89]

Others

The League of Women Voters of California opposed Proposition 8 because "no person or group should suffer legal, economic or administrative discrimination."[90] Additionally, all but two of the National Association for the Advancement of Colored People's local chapters in California and NAACP national chairman Julian Bond and President Benjamin Jealous opposed Proposition 8.[91] Amnesty International also condemned Proposition 8, saying that "states should never withhold rights based on minority status".[92]

A coalition of Silicon Valley executives urged a 'No' vote on Proposition 8.[93] Google officially opposed Proposition 8 "as an issue of equality."[94] Apple Inc. also opposed Proposition 8 as a "fundamental" civil rights issue, and donated $100,000 to the No on 8 campaign.[95][96] Biotech leaders warned of potential damage to the state's $73 billion industry, citing Massachusetts as a top competitor for employees.[97] Many members of the entertainment industry were opposed to Proposition 8.[98]

The Los Angeles Unified School District Board of Education voted unanimously for a resolution to oppose Proposition 8.[99] The California Teachers Association donated one million dollars to fight Proposition 8.[100] Chancellor Robert Birgeneau of UC Berkeley urged a vote against the measure, claiming a likely threat to California's academic competitiveness if Proposition 8 is passed.[101]

Newspaper Editorials and Proposition 8

All ten of the state's largest newspapers editorialized against Proposition 8, including the Los Angeles Times,[102] and the San Francisco Chronicle.[103][104][105][106][107][108][109][110][111] Other papers to have editorialized in opposition include The New York Times,[112] La Opinión (Los Angeles),[113] and The Bakersfield Californian.[114]

Crimes against supporters and opponents

A week before the vote, Fresno Mayor Alan Autry received an email containing death threats against both himself and Pastor Jim Franklin of Fresno's Cornerstone Church, both of whom had spoken in support of Proposition 8 during a rally at Fresno city hall the preceding weekend. According to Fresno Police Chief Jerry Dyer, the email stated that the threat "was stemming from Prop 8".[115][116] Fresno "No on 8" organizer Jason Scott condemned the death threats, and Mayor Autry expressed concern that there might be a backlash against opponents of the measure.[115][116] Fresno-area supporters of gay marriage were also harassed; "No On 8" signs at the Clovis Unitarian Universalist Church were torn up, with Reverend Bryan Jessup alleging that his church experienced vandalism "every night".[115]

At a LDS church in Orangevale (in Sacramento County), vandals spray painted in red letters on the front sign and sidewalk: "No on 8" and "No on Prop 8".[117] An affiliate group of the Radical Trans/Queer organization Bash Back! claims to have poured glue into the locks of an LDS church and spray painted its walls.[118]

Santa Clara County Deputy District Attorney (DDA) Jay Boyarsky attributed a surge in anti-gay hate crimes, from 3 in 2007 to 14 in 2008, to controversy over Proposition 8. However, the DDA questioned the reliability of small statistical samples, asserting that the vast majority of hate incidents don't get referred to the DA's office.[119]

Pre-decision opinion polls

Various opinion polls were conducted to estimate the outcome of the proposition. Those margins with differences less than their margins of error are marked as "n.s.", meaning not significant (see Statistical significance). Those margins considered statistically significant are indicated with the percentage points and the side favored in the poll, as either "pro" for in favor of the proposition's passage (e.g., 1% pro), or "con" for against its passage (e.g., 1% con).

According to the director of the Field Poll, the discrepancy between the pre-election polls and ballot results is because "regular church-goers ... were more prone than other voters to be influenced by last-minute appeals to conform to orthodox church positions when voting on a progressive social issue like same-sex marriage."[120]

Date of opinion poll Conducted by Sample size
(likely voters)
In favor Against Undecided Margin Margin of Error
29–31 October 2008[121] SurveyUSA 637 47% 50% 3% n.s. ±4%
18–28 October 2008[122] The Field Poll 966 44% 49% 7% 5% con ±3.3%
12–19 October 2008[123] Public Policy Institute of California 1,186 44% 52% 4% 8% con ±3%
15–16 October 2008[124] SurveyUSA 615 48% 45% 7% n.s. ±4%
4–5 October 2008[125][126] SurveyUSA 670 47% 42% 10% 5% pro ±3.9%
23–24 September 2008[127][128] SurveyUSA 661 44% 49% 8% 5% pro ±3.9%
9–16 September 2008[129] Public Policy Institute of California 1,157 41% 55% 4% 14% con ±3%
5–14 September 2008[130] The Field Poll 830 38% 55% 7% 17% con ±3.5%
12–19 August 2008[131][132] Public Policy Institute of California 1,047 40% 54% 6% 14% con ±3%
8–14 July 2008[133][134] The Field Poll 672 42% 51% 7% 9% con ±3.9%
17–26 May 2008[135] The Field Poll 1,052 42% 51% 7% 9% con ±3.2%
22 May 2008[136] Los Angeles Times/KTLA 705 54% 35% 11% 19% pro ±4%

Results

CA2008Prop8.svg
Proposition 8[137]
Yes or no Votes Percentage
Referendum passed Yes 7,001,084 52.24%
No 6,401,482 47.76%
Valid votes 13,402,566 97.52%
Invalid or blank votes 340,611 2.48%
Total votes 13,743,177 100.00%
Voter turnout 79.42%

Amending the California Constitution by voter initiative requires a simple majority to be enacted.[138]

Edison/Mitofsky conducted an exit poll on behalf of the National Election Pool which is the only source of data on voter demographics in California in the 2008 election.[139][140] Interpreting the exit poll requires some care, as it does not include information about the poll locations where the surveys were conducted. This can be a problem, because exit polls are more inaccurate than regular opinion polls, due to an intrinsic geographical bias stemming from the fact that most precincts are not sampled.[141]

The statistical trends from the exit poll of 2,240 voters suggested that an array of voters came out both in opposition to and in support of Proposition 8, with no single demographic group making up most of either the Yes or No vote. Support for Proposition 8 initially appeared strong amongst African American voters interviewed in the exit poll[142] but an analysis by Patrick Egan of New York University, who wrote a report with Kenneth Sherrill of Hunter College of New York for the National Gay and Lesbian Task Force showed otherwise.[143] Their analysis of precinct-level voting data on Prop. 8 from Alameda, Los Angeles, Sacramento, San Diego and San Francisco counties, which are home to nearly two-thirds of California's black voters, suggested that African American support for Prop. 8 was much less than originally inferred from the exit poll.[144] Those who described themselves as religious were the strongest supporters of prop 8.[145] Young voters were more likely to have voted against the ballot measure than older voters, while Republicans were more likely to have supported the measure than were Democrats.[146]

Post-election events

A constitutional amendment passed by the electorate takes effect the day after the election.[138] On the evening of November 4 the "Yes on 8" campaign issued a statement by Ron Prentice, the chairman of ProtectMarriage.com, saying "The people of California stood up for traditional marriage and reclaimed this great institution."[147] The organizers of the "No on Prop 8" campaign issued a statement on November 6 saying "Tuesday’s vote was deeply disappointing to all who believe in equal treatment under the law."[148] The counties of Los Angeles, San Francisco, Yolo, Kern, Santa Barbara, San Luis Obispo, Sonoma, San Diego, San Bernardino, Sacramento, and Tuolumne stopped issuing marriage licenses to same-sex couples the day after the election.[149][150][151][152][153]

Following the passage of Proposition 8, mass protests took place across the state. These included protests outside a temple of the LDS Church in Westwood, Los Angeles;[154] a march through Hollywood that blocked traffic and elicited police intervention;[155] and a candlelight vigil in front of the Sacramento Gay and Lesbian Center.[156] In San Francisco, thousands gathered in front of the City Hall to protest the proposition and to perform a candlelit vigil. Speakers who voiced their opinion in opposition of Proposition 8 included state senator Mark Leno and mayor Gavin Newsom.[157]

These protests led to several lawsuits being filed in the State Supreme Court and the Federal District Court. On November 13, 2008, the California Supreme Court asked California Attorney General Jerry Brown for an opinion on whether the Court should accept these cases for review and whether the measure should be suspended while they decide the case. On November 19, the Court accepted three lawsuits challenging Proposition 8, which consolidated into Strauss v. Horton.[158] When the Supreme Court upheld the voter initiative, a suit, Perry v. Schwarzenegger was filed in a Federal District Court in San Francisco. A trial as of January 11 is currently being held.[159]

Full text

Proposition 8 consisted of only two short sections. Its full text was:[160]

Section I. Title
This measure shall be known and may be cited as the "California Marriage Protection Act."
Section 2. Article I. Section 7.5 is added to the California Constitution. to read:
Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California.

See also

References

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  39. ^ "McCain Supports Efforts to Ban Gay Marriage". U.S. News & World Report. 2008-06-27. http://www.usnews.com/articles/news/campaign-2008/2008/06/27/mccain-supports-efforts-to-ban-gay-marriage.html. Retrieved 2008-09-01. 
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