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Proposition 8 Reversal

On International Human Rights Day, December 6, 2011, Secretary of State Hilary Clinton urged the UN members to “be on the right side of history” and accord gays, lesbians, bisexuals and transgender people the same human rights as heterosexuals. Today, February 7, 2012, California moved closer that ideal when the 9th Circuit Court of Appeals ruled that “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.” Judge Stephen Reinhardt, in writing the majority opinion, further stated that “California has no interest in discriminating against gay men and lesbians.” Today’s ruling upholds a previous court decision by Judge Vaughn Walker that determined Prop 8 was a violation of the civil rights of gays and lesbians “because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis.”

It’s been a long strange trip…

January 3, 2000: California began registering domestic partners, thereby allowing gay and lesbian couples to have rights to their partner’s health insurance benefits and hospital visitations.

March 7, 2000: 61% of California’s voters passed Prop 22, a measure that limited marriage to heterosexuals only.

September 19, 2003: Governor Gray Davis increased the legal rights of domestic partners.

February 12, 2004: The Mayor of San Francisco, Gavin Newsom, began issuing marriage licenses to gay/lesbian couples. Almost 4,000 licenses were issued before the State Supreme Court declared he had no right to issue them. Gay couples who had married found themselves unmarried.

September 29, 2005: Governor Schwarzeneggar vetoes a same-sex marriage bill passed in the California legislature because it overturned Prop 22 without a public vote. He did this again, for the same reason, on October 12, 2009. (Note: Legislatures are allowed to pass laws. That is what the voters elected them to do.)

May 25, 2008: The California Supreme court rules that the existing bans on gay marriage are unconstitutional.

June 2, 2008: There are enough signatures to put the “Marriage Protection Act”—later known as Prop 8—on the November ballot. It passes by 52% (note: that is 9% fewer votes than Prop 22 garnered). Before it went into effect, approximately 18,000 gay couples were married—and this time, they were allowed to remain married.

Prop 8 goes before the courts. Neither Attorney General (now Governor) Jerry Brown nor Governor Schwarzeneggar defends it. On August 4, 2010, Judge Vaughn Walker declares it unconstitutional.

What happens next:

The ruling allows for an appeal before same-sex couples can marry. Those contesting the ruling—a coalition of conservative religious organizations—may either apply to a larger 9th Circuit Court panel or go directly to the US Supreme Court. At the moment, it is unclear what the opposition’s next course of action will be. Meanwhile, today’s decision was very clearly limited to California’s situation, even though the 9th District Court covers nine western states. The US Supreme Court may decline to hear the case because the ruling is restricted to California.

What does this mean?

If the opposition chooses to appeal, it will be a good deal longer before same-sex couples can marry in California. Meanwhile, the Love Honor Cherish coalition, a group supporting same-sex marriage, intends to gather enough signatures to put the repeal of Prop 8 on next November’s ballot. If that passes, any further court action will be moot. The difficulty may come if the US Supreme Court decides to hear the case. It is a conservative court. If the Court adheres strictly to the Constitution, a ruling based on religion would be impossible, but it could determine that states have the right to set social policy, in which case Prop 8 would stand. There are larger issues: Massachusetts is arguing that our state grants equal protections to same-sex couples, but is compelled to discriminate against them in certain instances because federal law doesn’t recognize same-sex couples.

There is hope on the horizon:

Seven states plus the District of Columbia now grant marriage rights to same-sex couples, and five states grant them civil unions. Polls consistently show that the majority of people, especially younger people, believe that same-sex couples should be allowed to marry. In Loving vs. Virginia, the landmark civil rights case of 1967 which allowed interracial marriage, a couple’s rights in one state conflicted with their rights when they moved to another, so the Supreme Court stepped in. The similarities to the current situation are striking. Change takes time, but time is on our side.

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