The Prop. 8 Case: You Might Not Be Gay, But You Might Be Next

(Originally posted on Daily Kos.)

On November 19, the California Supreme Court agreed to hear a lawsuit that we at the ACLU, the National Center for Lesbian Rights, Lambda Legal, and Equality California filed the day after the election, asking the Court to strike Proposition 8 down. Here’s what our case is about.

The California Constitution can be altered in two ways. The way most people know about is to simply amend the Constitution. Amendments are meant for less serious constitutional changes and are voted into effect by a simple majority of the voters. Proposition 8 was done as if it were an amendment. The other way to change the California Constitution is through what’s known as a revision, which is what the law requires for major, fundamental changes. Revisions have to be approved by 2/3 of each house of the legislature before the question is put to the voters.

In our case, we’re arguing that Proposition 8 is invalid because it calls for such an immense change in the California Constitution that it must be handled as a revision, rather than through an amendment.

Why is Proposition 8 a major change? Because it jettisons two of the central ideas on which the California Constitution — like the federal constitution — is based. First, the very idea of constitutional government and of the rule of law itself is that everyone is equal before the law, that there is one set of rules for everyone. Equality isn’t just a nice goal in the California Constitution’s Declaration of Rights; it’s a principle that resonates throughout the entire document. The second idea is that the very purpose of a Declaration of Rights (or a Bill of Rights in the federal constitution) is that it lays out rights which can’t be taken away just because a majority of people would like to do that. The guarantee of free exercise of religion means, for example, that unpopular religious groups can’t have their right to worship taken away.

Proposition 8 takes something the California Supreme Court already found to be a fundamental right — the right to marry — away from a historically disadvantaged minority — gay people. To put it bluntly, Proposition 8 put a cherished right of a protected minority up to a popular vote. That, we say, is such a drastic change in what the Constitution allows, a rejection of the very idea of protected rights and equal justice, that it must be treated as a revision of the Constitution, requiring the approval of the legislature before a vote. (You can read more about the case here).

Marriage isn’t the only thing at stake here. If the California Constitution can be amended to take the right to marry away from gay people, then any fundamental right could be snatched away from any group that’s outnumbered at the polling places. As one of the signs seen at the massive protests that have taken place around the country in the wake of Proposition 8 says, “You may not be gay – but you might be next.” That’s what we’ll be telling the California Supreme Court when arguments are held next March in our case, Strauss et al v. Horton et al. It’s difficult for me to think of a greater threat to the principles of individual freedom for which the ACLU stands.

— Matt Coles & Chris Hampton

To learn more about Prop. 8 and tools for advancing LGBT equality in your community, visit Get Busy, Get Equal!

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What I find scarier is that four judges can overturn a proposition passed by popular vote (Proposition 22), and now another proposition may also be overturned because a vocal minority protests enough.

If Proposition 8 is overturned, then two things will happen: voters will become disenfranchised, realizing that their votes can amount to nothing if certain people make enough noise; and the persecution of religions that view homosexuality as a sin will begin. I see the First Amendment changing where religious leaders can no longer preach against homosexuality, even though their holy texts have done so for time immemorial.

Consider this: already, California recognizes same-sex domestic partnerships. Now, these same-sex partnerships can refer to what they have as "marriage" if they wish to do that, but why redefine marriage for the majority of Californians who have clearly-defined views of marriage as being between a man and a woman? Because "domestic partnership" is a "separate but equal" institution? No, it's an alternative for those who choose to live in an alternative lifestyle -- "alternative" meaning a lifestyle that is alternative to the heterosexual marriage "lifestyle" that produces offspring, illustrates physiological compatibility, and provides a balanced mother-father upbringing for children.

Let me put it this way: let's say that I choose to not enlist in the military. As a non-veteran, I would not be eligible for veteran benefits, such as locking my mortgage interest rate at 6% while on active dute or certain tax breaks. Is that fair? Of course, it is. I chose to not enlist, so I don't get veteran benefits. However, homosexual couples want to get married. Up until now, every world culture defines marriage as being between a man and a woman, and certain tax and governmental benefits (at least in Western countries) are afforded to those couples. Is that fair? Of course, it is. Those homosexual couples chose not to pair up with opposite-sex partners, so they do not satisfy the widely-defined requirement of marriage.

So, is Prop 8 about denying rights? No. At the state level, homosexual couples can get the same tax and government rights as heterosexual couples if they opt for a domestic partnership. Moreover, homosexuals already get ample protection as a "special group" in California law, especially in the Labor Code. The only "right" that is being disputed is the right to redefine an institution that means something specific to a lot more people than the amount of people who want to change it for themselves.

Dissilusioned Aussie

I'm no expert on US law but Fundamental rights cannot be changes/struck of by a simple majority in a referendum.

It requires a 2/3 majority in a vote on a constitutional amendment to do that.


So let me get this straight, Proposition 8 is not an amendment but a revision to California's constitution because it was such a drastic change to the constitution. This despite the fact that marriage in California has been recognized as between a man and a woman for 157 years of California statehood until earlier this year California's Supreme Court just noticed that this right was in the Constitution the entire time. If the ACLU is successful than California's Constitution has no meaning. California would be the first state to officially invalidate their constitution.

Steven in Idaho

I think the ACLU should not only focus on state homosexual rights but also work on having the Defense of Marriage Act (DOMA) revoked. This is using the beliefs of a majority to restrict the rights of a minority. We have been through the same problem before. Look at black/white separation in the south. That was formed on a belief that whites were superior to the black people of the nation. This was struck down after a long and drawn out battle. Why repeat history and teach the younger generation it is acceptable to descriminate as long as those you are discriminating against violate your basic beliefs?


Is there anything on the agenda to address the rights or opposite-sex couples who live under the same roof but are not allowed to register as domestic partners in California?

terry B

Yes on Prop 8

PROP 8 - No to Same-Sex Marriage

How many times does a Law have to be changed to accommodate the needs of Special Interest? If there were 100 Special Interest Groups with different interpretation of the Marriage, should the Law be changed 100 times to please each and every Special Interest.

This issue is Not just about Marriage anymore. This issue questions the very Nature of what Democracy is all about. Democracy is NOT predicated on Special interest.

In a Democracy, the Majority Rule rules. This is what the Democratic Process is all about.

The people of California have have ruled and decided Uphold and to Safeguard the True Nature of Marriage, exactly the same way the Law was actually written.

Every judge, Governor, Mayor Assemblyman should Honor, Protect & Safeguard this Law. For any Elected or Appointed Official to question the righteousness of this Decision, might as well question the righteousness of their own election. They must have forgotten the manner in which they were elected.- by a Majority Rule.

The GLC already exercise every possible Right possible in a Democracy - the right to Vote, to Equal Employment, The Right to do Business, the Right to own Property, etc.

In fact is, the GLC have continually abused their Rights of Free Speech and Assembly -
-by subverting the peace in our Communities,
-by instigating violence & unrest.
-by harassing, slandering peaceful Citizens,
-by harassing our Lawmakers and
-by harassing the Courts.

Let the GLC enjoy all the Rights they want. BUT they have No right to distorted the the TRUE NATURE of Equal Rights in the Constitution, or any law for that matter - including the Law on Marriage.

The problem with the GLC is that they malign any person who disagree with them as Bigots.

Well, the GLC might as well call God a Bigot - since He created a Man & a Woman (which is the basis of Marriage).

The GLC might as well call Jesus Christ as a Bigot since He sanctified Marriage.

The GLC might as well call our Founding Fathers as Bigots since they instituted the Law on Marriage.

The truth is the GCL have gone insane - and they want to suck every other citizen into their Insanity.
And they have the audacity to compare their so-called "Struggle" for attention to the Equal Rights Struggle of the past Centuries is an Insult to the Afro-American Community.

Shame on them - these Drama Queens. They don't know when to stop.
All I can say to the Gay & Lesbian Community is ENOUGH is ENOUGH.
And please GIVE US PEACE.

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