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California's Prop 8 UpdateYesterday, the ACLU, along with Lambda Legal and the National Center for Lesbian Rights, filed a lawsuit in the California Supreme Court, urging the court to invalidate Prop. 8. (You legal wonks can check out the complaint here.) We also issued a press release yesterday reminding everyone that California Attorney General Jerry Brown has stated that if Prop. 8 does pass, the state will still honor the marriages of same-sex couples wed between June 16, 2008 and passage of Prop. 8. More news to come on this, for sure. To learn more about Prop. 8 and tools for advancing LGBT equality in your community, visit Get Busy, Get Equal!
Tags: 2008 Election
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Nov 6th, 2008 at 4:36pm
Liberals do not respect democracy.
Liberal activist judges is all left-wing groups like ACLU and PFAW want and support.
They cannot do things the democratic way, which means judges stay out areas where they have no business and let the people decide.
Newsflash to liberal groups fighting Prop 8. You will lose. If the state Supreme Court gets involved and overturns the will of the people they will face an inevitable recall. If they do overturn it will go to the U.S. Supreme Court.
5-4 is how they will rule.
Scalia, Thomas, Alito, Roberts, Kennedy and maybe even Breyer to uphold Prop 8
Nov 6th, 2008 at 5:00pm
What about the AZ constitutional amendment that passed? Where are the lawsuits?
Nov 6th, 2008 at 7:39pm
This is disgusting!!! You liberals make me sick - so much for voting, freedom and democracy. The people have voted and the outcome is clear...marriage is ONLY for one man and one woman, get it? Gays already have civil unions and you're lucky to have that!
Nov 6th, 2008 at 7:43pm
Kirk, What lawsuits. The people have spoken and that is the law.
Those in CA that refuse to respect the rule of law will get a wake up call soon.
The Illegal Gay Licences issued since May are VOID.
"only 1 man 1 woman is valid"!!!
Nov 6th, 2008 at 8:21pm
Has anyone thought about a lawsuit to remove the word 'marriage' from the constitution? The majority of arguments I've heard are from people of a religious background claiming that God defines marriage to be between a man and a woman. And if this is the case, isn't it unconstitutional to use the word in an amendment?
""
Congress shall make no law respecting an establishment of religion...
""
Nov 6th, 2008 at 8:49pm
There is an important second line of attack on Proposition 8 that the ACLU should advance: The "Republican Form of Government" guarantee clause in the US Constitution.
The California Supreme Court is, oddly, one of the leading proponents of this little used provision. In Agua Caliente Band v. Superior Court (2007?) the Court held that the state's interest in regulating its electoral process implicated this section, thereby trumping the tribe's sovereign imunity, allowing the FPPC to enforce donation regulations against the tribe.
The clause was designed to ensure that states had representative forms of government. It has been little used, as generally, there has been no real remedy available. Courts have generally found that the controversies that arise are too political to be amenable to court based solutions. Not always though.
So how do I think it applies here? Well, first, I don't think it will give the "grand slam" win. It wouldn't support an argument that the court was right and the voters were wrong on the equal protection issue. That will have to be won or lost on other grounds, and frankly, I think the "revision" argument is weak. For better or worse, California has let initiatives get pretty radical; this one (despite the reek of bigotry) doesn't seem to make structural changes on a different order than prior initiatives.
The guarantee clause does, however, provide an important fallback position. Proposition 8 does more than turn back the clock on the Supreme Court's decision. It also forecloses the legislature from doing anything on the issue ever.
Civil marriage has historically been an issue of overriding legislative concern. Think about it. Family Law is the regulation of the most private aspects of people's lives. In any other area of the law, it would seem almost absurd to have the types of arcane and almost nonsensical regualtions that one finds in family law. The most sweeping generalizations are allowed; rules that make sense only in a portion of cases apply to every marriage. How can a law regulating two 25 year olds with a new born be applied to a couple in their 60's?
Also, look at the hodgepodge of different laws in different states, and over different eras, all regulating one area of life where, ideally, the government should stay out as much as possible.
The point of this digression is to pose this question? Why has this whole process been allowed, and not stricken down decades ago? Because it has been historically recognized that the costs and benefits of the social (not civil) institution of marriage are so important, for good or for ill, not just for individuals but for society as a whole, that it is peculiarly within the purview of State Legislatures to try to make sense of it, no matter how poor the results may be, and that the ability to change and modify rules, (not just according to "social mores", but in response to practical changes in the way people live their lives) is essential.
Thus, by handcuffing the legislature on this issue, the electorate has usurped the legislative function to an unacceptable amount.
As i said earlier, this won't win the moral issue. This argument would have no value if the ballot meaure had simply overturned the Court decision and left it at that.
But by handcuffing the Legislature in an area where it has traditionally excercised almost unfettered discretion, Prop 8 went too far. This argument will have particualr strength if the legislature itself asserts it.
It will also give the courts a more technical way to strike down parts of Prop 8, allowing the state to move ahead by normal legislation, without so obviously flying in the face of the voters.
Nov 6th, 2008 at 9:41pm
@ Liberal hater
Well, it's official it never was about saving the children or marriage instead (surprise!) it was always about anger and hate. The unpublished 11 commandment: "Thou shall hate all homos" -- Jesus Christ in heaven I'm sure is please to read your screed and bless you (I don’t think so).
Nov 7th, 2008 at 12:14am
God made man and woman in His image. Together, as a male and as a female, we complete that image. Like the balance of the yin yang, we need both a male and female to demonstrate the balance in nature. If you have homosexual desires you of course may not want to hear this, but truth does not change in our ears. It is a hard truth for our culture but a compassionate truth anyway. It is in the heart of God to lift our hearts to Him and seek His truth, not our own preference.
Blessings and peace,
From the Heart of Christ
Nov 7th, 2008 at 12:40am
Where are the lawsuits against the religious groups that spent millions and get away with political activity? Where in the US Constitution or Bill of Rights, the allowance of right wing religionists the right to force their dogma down the throats of people who believe otherwise. People didn't have "marriage" sacraments before religionists who want to control peoples' lives invented them. If you do or don't want to marry, go right ahead. I, however, would prefer that you keep your closed-minded dogma to yourself and stay out of my choices. Wars are caused by religionists trying to usurp my rights of choice in marriage partners and religion or no religion. Too bad christianity isn't more Christ-like and less prone to forcing free Americans into Nazi-like and/or Communist like conformity.
Nov 7th, 2008 at 4:20am
Newsflash to "Liberal hater:" There's no such thing as a recall vote on the Supreme Court in California.
One justice is up for "retention vote" next year then it's another 5 years until just two more come up.
PLUS, six out of seven on the current court were appointed by Republican Governors. I doubt they would describe themselves as "liberal haters," but they certainly did what was right - by the State's Constitution - when they overturned the last vote for institutionalized hatred.
As for the U.S. Supreme Court ruling on a matter governed by a State Constitution and not in conflict with the U.S. Constitution ... good luck. (Try reading the U.S. Constitution and you may see why.)
Nov 7th, 2008 at 12:22pm
To Liberal Hater,
It is not healthy to hate. It actually increases blood pressure. Maybe take a little breather. Besides, there is a thin line between love and hate. Think about it.
Nov 7th, 2008 at 1:38pm
While it is easy to venomously sling words like "liberal" the fact remains that an attempt to augment the constitution is an attempt to defy its purpose. The constitution was designed to specifically safeguard the rights of the few from the rights of the many. Through my novels and films I hope I can continue to emphasis people's fundamental similarities over or disagreements.
Nov 7th, 2008 at 8:09pm
@Heart of God
It is interesting to me how you think that you know God's "preference". For you to feel like you have a "claim" on God is quite arrogant. You were made in God's image... not the other way around!
God is many things to many people and it is "Christ-Like" to respect these differences. (Christ never attacked anyone for their differences, much less any record of him disapproving of homosexuality.)
It is God that is all knowing... not humanity. You, in your limited knowledge are only a tiny fragment of the complete picture... God is the picture.
You are assuming that God has the same plan for everyone. Did you ever stop to think that we are all living out God's unique, individual, plan for each of us? How are you so confident that Homosexuals are not God's plan? Do you know all that God has planned? Are you completely confident that God has given you all the details to God's will? Do you know everything? I assume that you would be performing miracles such as those that Jesus performed if you did. Can you walk on water??? ...Or do you merely act as though you do???
To equate your knowledge with that of God is blasphemy. Humility is recognizing that we are all a small limited part (With limited knowledge) of a much larger existence.
That being the case we must respect the lives of others. Many homosexuals are just as sure as you claim to be that their love one for the other is God's plan in action. Are you so sure that you know everything, that you are willing to interfere with what could be God's plan? That's entering dangerous territory.
Just food for thought.
Nov 8th, 2008 at 12:06am
Where is the lawsuit to fight for heterosexual rights?
Family Code 297.5B summarily denies heterosexual couples under the age of 62 the FUNDAMENTAL RIGHT to enter into a Domestic Partnership!
Sham on you ACLU for not defending all Californians!
Nov 8th, 2008 at 1:06am
Personally, I feel discriminated against even though neither I nor my partner are gay. If CA wants to define "marriage" in a discriminatory and exclusionary way, then (for the sake of argument) so be it, but then that's not the type of union in which we're interested. We would rather have a status based on our feelings, which we equate to the feelings of others, gay or straight, and not be forced into a particular status based upon the "morality" of the majority. Domestic partnership seems more comfortable to us but, ironically, we're not eligible because we're not gay! Why should people have to be gay (or over 62) to form a domestic partnership?
Nov 8th, 2008 at 3:55pm
Since the CA Supreme Court approved the wording of the prop 8 ballot initiative, it should be consistent and not find a problem now.
It is shaky ground to argue between "revision" and "amendment."
Further, if one argues that to illegalize gay marriage is "discrimination," then what of incestuous couples who wish to marry? What of an old man and a 12-yr-old? After all, both consent.
Please make an argument against the above and don't just assert.
Nov 9th, 2008 at 12:34am
As long as the state of California issues all marriage licenses, then it is a state institution and not a religious one. Case closed. Certain churches can refuse to marry couples, but quite frankly, all it takes is a person legally ordained over the internet and recognized by the state to perform any marriage. When a marriage is dissolved, you file with the state in a divorce action, not with a church.
The LDS church spending $20M to actively promote their opposition to Prop 8, or “hate 8” as their signs read is a complete and total violation of the federal 501 (c) section (3) that grants them TAX EXEMPT STATUS.
This is first and foremost where the issue needs to be addressed. Take away the tax exempt status of the LDS church and in the process this will a) send a message to stay out of influencing the election process and b) generate badly needed tax dollars to pay down the deficit and start to get us out of the “Bush Depression” we have now entered.
As far as the religious idiots are concerned “one and one woman.” – At one time but not for a lifetime. However in excess of 50% marry one, divorce then marry the next, (then divorce again and marry again and again.)
Yes, this type of marriage is real sacred. END DIVORCE IN AMERICA IF THIS INSTITUTION IS SO SACRED.
Nov 9th, 2008 at 3:21pm
Democracy does not mean, the rights of a minority being decided by the majority. If such, then the right to be equal under the law is totally flawed. Why we keep linking civil rights to the bible. The state should have a contract license for the union itself and each couple should have the "marriage" ceremony of their choice in any church affiliation they want. After all your religious beliefs might not be necessarily mine. Quit the whole God made a man a woman. What about evolution created man and woman. Do I need to have my rights taken away just because your god happens not to be mine?
Nov 9th, 2008 at 7:02pm
What about challenging Proposition 8 on the basis of separation of church and state? Isn't the "man v. woman" version of "marriage" advancing religious views just as "Creationism" does?
Nov 10th, 2008 at 11:23am
Haven't you people ever heard of a little thing called the Constitution? I know that Bush and his buddies have been ripping it to shreds the last few years, and they've pretty much convinced a lot of Americans that it is just a piece of paper, but that isn't the truth.
Just because a bunch of constitutionally-illiterate bigots vote to discriminate against one group of people does NOT mean that the governments have to honor it. If 60% of American voted tomorrow to start rounding up all black people and forcing them into slavery again, that wouldn't be legal. If 60% of Americans voted tomorrow for a Constitutional Amendment that says people with brown hair and tanned skin can't drive or obtain drivers licenses, that wouldn't be allowed either.
So why do you idiots think that banning gay marriage would be allowed, and that all the people you're discriminating against should just sit quietly and enjoy their second-class civil unions? Your "reasoning" is clouded by bigotry and hatred, and if you pull your tiny little heads out of your huge behinds long enough to learn and understand the basic principles of our country, you'd realize that discrimination in any form is abhored and will alwaya be fought against, no matter how it was presented.
The "well, the people have spoken!" argument is just so ill-informed and totally ludicrous, I can't believe I'm wasting my time commenting on it...
Nov 10th, 2008 at 12:19pm
Doug, was it the "church" or was it its members who gave and were involved in this campaign. Are you taking the position that people of faith have no right to speak up? that they should keep quiet ? That their beliefs dont count? It is funny that here on the ACLU site you would be proposing that a CONSTITUTIONALLY protected right be voided. Last time I checked , your right to shoving your sexual deviancy down our throats was not in the constitution.My right to speach an exercising my faith IS.
Nov 10th, 2008 at 12:22pm
Wrong brett,
the constitution does not grant you rights or any special treatment. It doesnt "protect" minorities either. The constitution delineates the power that we the people authorize government to wield. The defining of marriage is up to the people and the people have spoken.
Nov 10th, 2008 at 5:56pm
@ "heart of God"
I'm sure you meant well with your post, but, you just affirmed the belief that the many of the "Christian" people supporting "hetero-only marriage" (like it's some exclusive prejudiced country club) don't even know their own Bible. Genesis says that God made MAN in His own image and WOMAN was created in the image of MAN...btw.."Yin and Yang" is not in the Bible. So, just a question, what "image" did David make (A man after God's own heart) when he took multiple wives? You may not want to hear this, but, God loves all His children. God did make Adam and Steve and Bigotry is a sin. Perhaps someday people will stop abusing the name of God to justify their own hate and narrow mindedness.
Nov 11th, 2008 at 3:59am
Even the Attorney general is trying to change the constitution of California. Let's get right, since Novemeber 5th, 2008 "Only marriage between a man and a woman is valid and recognized in California." Which of course means very succinctly all same sex marriages are no longer valid or recognized in California. Please stop lying to the same sex couples, who tried to pull a fast one on California voters.
Nov 11th, 2008 at 10:35pm
There's a lot of hate on both sides, so I think they just need to separate. I respect gay love but I also respect the votes of the people of California, so I think we should expand the term 'civil union' to cover all the same rights as a 'marriage', just under a different name to protect gays from hyper-religious fury.
As Shakespeare said, "A rose by any other name would smell as sweet"
Nov 11th, 2008 at 11:01pm
Those that worked to pass Prop 8 exercised their constitutional freedoms of religion and speech. If the system works to promote your agenda, you love it, if not, you hate it and the law suits begin!
Where is the ACLU when it is time to defend those that exercised their constitutional rights to pass Prop 8?! What hypocrisy that the door only swings one way!
The people of CA have now spoken twice. Quit blaming the Mormons! They represented less that 3% of the yes vote!!! You lost! Get over it, enjoy rights afforded through civil unions and get on with it! A marriage is between a man and a woman. By definition, same sex unions will never be marriages.
Nov 12th, 2008 at 8:53pm
Let's face it--in any legal arguement, there is always one winner and one loser. Likewise, it is NOT DISCRIMINATION when the majority vote on the passage of a propostion, and a minority does not get their way.
Throughout history, society has had to draw the line on what is acceptable and beneficial to the continued well-being of society, and what is not.
Prop 8 is the majority's voice on what it deems as an acceptable definition of MARRIAGE. It is no more "anti-gay" than it is "anti-polygamy," anti-polyandry," "anti-bestiality," "anti-child sex offender," etc. It is simply society "drawing the proverbial line," and although there will always be those that disagree with a majority ruling, it is law and the very basis of choosing our freedom to act in the United States of America.
Don't like it? Maybe another country is more "compatable" for those not willing to accept America's voice, which is that of the majority of people.
Nov 13th, 2008 at 2:48am
What is it. That str8 people get to redefine "marriage" when convenient. Long time ago, the concept of "marriage" was the right on one man to acquire the property of another man including his unmarried daughter. Time went by and then anyone could married as long they were of the same race. Lately those who have the right to marry, do it 2 or 3 times on their lifetime whether there are children or not. Do not tell me you are protecting the sanctity of "marriage", you have redefined it so many times, it sure has lost its meaning.
PS Mormons should first campaign to end polygamy once and for all, then perhaps after you clean your own house, gays and lesbians will feel more comfortable with your agenda. But what can you expect, they discriminated people of color until the 70s, women are still look upon down in present days. Give me a break.
Nov 13th, 2008 at 3:18am
Just curious, can another proposition to strike the amendment from the CA Constitution be made at the next general election?
I agree that majority opinion will sway our way in the very near future, and I prefer to dwell on ways to harness that momentum in the very near future.
I can't wait to see how this drama will play itself out...
Nov 14th, 2008 at 3:36am
"Still in my Right Mind Says:
Likewise, it is NOT DISCRIMINATION when the majority vote on the passage of a propostion, and a minority does not get their way"
Im sure thats what people said in the 1950's and 1960's to stop africian americans having rights!!!!
Nov 14th, 2008 at 5:10am
Don't Amendments to the California (and U.S and probably Arizona and Florida where they also passed constitutional gay marriage bans) require a 2/3 vote from the state legislature to pass? That was an idea created by the framers of the U.S Constitution to protect the rights of the minority from a simple majority
Nov 16th, 2008 at 1:44am
You know, since California believes gays are not worthy of marriage-which they have insulted people by passing a law making gays less than something human (back in the slavery days, their marriage was not legally recognized since slaves were viewed as PROPERTY, not individuals)-maybe gays should refuse to pay STATE TAXES since they are believed to be inferior. Let the churches pick up the bill since they are so superior: CHURCHES want to play politics so much-so let the churches pay taxes and make gays exempt since they are inferior in the California eyes.
Nov 17th, 2008 at 6:35am
It seems to me that marriage is a contract with God. The government really doesn't have any place in it.(How Republican of me, right?) So it seems to me that ANYONE should be able to marry WHOMEVER they wish, so long as they find someone to marry them from some sort of religious or spiritual institution/path, because really it's between the couple and God. If God doesn't approve, I'm sure God will take care of it, in whatever manner God sees fit.
It seems to me that "civil unions" should be the legal term used to describe everyone who wishes to be described as a couple in the terms of the government. Whether that couple is homosexual or heterosexual. There is God, and then there is our society. Hence, the separation of Church and State. This is necessary so that everyone's religious beliefs are protected. Amendment ONE. The first one! Then, if they wish to, a heterosexual civil unionized couple can look at a homosexual civil unionized couple and know that THEIR GOD or THEIR RELIGION does not recognize the marriage of that couple. Fine. That's their beliefs. The point is the government shouldn't be discriminating on benefits based on religious beliefs.
Another thought: All of these people who seem to so adamantly want to preserve the "sanctity of marriage"- are seemingly threatened by the idea that just because a gay couple is described by the same term as they are that all of a sudden their relationship has somehow lessed in value. If that is true then they don't have the faith they proclaim to have, and their marriage wasn't so sacred after all. Something either is sacred or it isn't. Doesn't matter what we call it. Seems to me we should be giving others the benefit of the doubt and minding our own business, not hitting the voting booths to legislate discrimination based on our own fears and hate. I would think God would frown on our need to judge others, and to judge and punish them so harshly. In this scary time of violence and terrorism, I hope that we can come together as a community, a state, a country, based on commonalities and the acknowledgment that really we're all the same. We all are born scared and die scared. We all want what's best for the people we love, and endeavor to find and surround ourselves with people we love. Certainly it isn't difficult to understand that. This world can be a sad and scary place, why not do our part to be a part of what makes it a safer and more compassionate place?
Nov 21st, 2008 at 7:17pm
Here is a thought... instead of using the term "Civil Union" adopt the term "Civil Marriage."
The State of CA must distinguish between the legally binding state defined contract of civil marriage and the corresponding God ordained religious institution of Marriage.
Religious institutions do not want the government to define such a core religious institution in a manor inconsistent with faith. The church should never have allowed government to defined this aspect of religion.
Legally binding state contracts, including the contract of civil marriage, should be based on state and federal constitutional principles.
Therefore Religious Marriage and Civil Marriage should be defined individually and legally coexist.
Nov 21st, 2008 at 10:32pm
john in AZ
Don't shove YOUR sexual deviancy down my throat either you pissant.
Whatever rights you and your straight white boyfriends have decided you must have- it doesn't mean you have any right to tell ANYONE ELSE whom to love nor how to live. Come out of the closet already or shut up.
Nov 26th, 2008 at 3:19am
"Paul Says: 'Still in my Right Mind Says: Likewise, it is NOT DISCRIMINATION when the majority vote on the passage of a propostion, and a minority does not get their way”' Im sure thats what people said in the 1950’s and 1960’s to stop africian americans having rights!!!!"
Paul---I don't recall a propostion in the 1950's and 1960's seeking to define "the right to vote" as "banning African-Americans." Since African-Americans have had the right to vote since the late 1800's, before "white" women, just what proposition are you referring to?
I do recall, however, that marriage in the United States, as well as throughout the civilized world as we know it, has always been defined as between people of the opposite sex. Some cultures have allowed one man to have many wives, and some have allowed one woman to have more than one husband. Nevertheless, it has not been until most recently that some have sought to redefine MARRIAGE as being between two people of the same sex. That, Paul, is simply the history of mankind (with the possible exception of a few civilizations which were utterly destroyed, leaving scant historical records, shortly after mainstreaming homosexuality).
So Paul, if you don't like our country's system of government BY THE PEOPLE, meaning the MAJORITY voice of the people, there are several other countries on this great planet from which you have the freedom to choose. Perhaps if you really aren't willing to abide by those same legal precepts which have allowed you the freedom and respect to practice your sexual partnerships without being hanged (a common practice in the middle-east, for example), please remember that no one is forcing you to stay in this horrible country.