Prop. 8: the roots of California's challenge to gay marriage

The high court will weigh whether the state can have a constitutional amendment restricting marriage to a man and a woman.


The Proposition 8 case stems from a dispute over how marriage is to be defined in the constitution and laws of California.

In 2008, faced with efforts to legalize same-sex marriage, a group of voters began collecting signatures for a referendum – Prop. 8 – to amend the state constitution to restrict marriage to one man and one woman.

Three weeks after Prop. 8 qualified for the November ballot, the state high court rejected the traditional definition of marriage and ruled that the state constitution required recognition of same-sex marriage. Between June and November 2008, the state issued 18,000 marriage licenses to same-sex couples.

In November, Californians adopted Prop. 8 by a 52 percent to 48 percent margin. After the vote, two same-sex couples filed a lawsuit charging that Prop. 8 violated their right under the US Constitution to marry regardless of sexual orientation.

A federal judge agreed. On appeal, a panel of the Ninth US Circuit Court of Appeals in San Francisco ruled 2 to 1 that Prop. 8 was unconstitutional. But rather than finding a right to same-sex marriage, the appeals court decided that the ballot initiative violated the equal-protection rights of gay and lesbian couples by taking away their right to marry after it had already been granted by the state supreme court.

The court found no justification for the exclusion other than animosity toward homosexuals as a class.

In their appeal to the Supreme Court, Prop. 8 proponents say their intent was to restore the traditional definition of marriage, not to harm gay couples. "By reaffirming the traditional definition of marriage, the people of California have not even discouraged, let alone criminalized, any private behavior or personal relationship," Washington lawyer Charles Cooper writes in his brief supporting Prop. 8.

The lawyer for the same-sex couples, former US Solicitor General Theodore Olson, offers a different perspective in his brief to the court. "This case is not about whether marriage should be abolished or diminished. Quite the contrary," Mr. Olson writes. "Plaintiffs agree with Proponents that marriage is a unique, venerable, and essential institution. They simply want to be a part of it – to experience all the benefits the Court has described and the societal acceptance and approval that accompanies the status of being 'married.' "


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