Arguments Against California Proposition 8

On November 10, 2008, the California Supreme Court agreed to decide several issues regarding the validity of Proposition 8. The court press release indicates the court has asked the interested parties to brief and argue three issues:

1. Is Proposition 8 invalid because it is a revision of, rather than an amendment to, the state constitution?

2. Does Prop 8 violate the separation-of-powers doctrine under the California Constitution?

3. If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

The court also ordered an expedited briefing schedule. Oral arguments in the case were heard on March 5, 2009. Two months later, in May, the Court refused to overturn the law, saying it was a lawful amendment to the state constitution, not a revision. But the Court also upheld the legality of the marriages performed before Prop 8 was passed.

The majority of people who supported Prop 8 did so out of religious convictions. They think same-sex relationships are "not right" because, as gay opponents like to put it, "God created Adam and Eve, not Adam and Steve," or "the Bible says so."

If Proposition 8 had been defeated, it would not have erased these religious views or asked anyone to stop believing them. Individuals and religious organizations can continue to believe homosexuality is a sin or that same-sex marriage is wrong. But if Prop 8 is allowed to stand, the Constitution will be amended to take away a legal right same-sex couples had after the state Supreme Court ruling in May.

Ironically, at least a dozen Christian denominations already allow their clergy to perform same-sex marriage ceremonies. So same-sex couples HAVE the right to get married in a church. What they don't have in California if Proposition 8 goes into effect is the right to legal protection under the law.

Before the election, proponents of the measure suggested that churches could be forced to perform same-sex marriages or lose their tax-exempt status if they refuse. In fact, tax-exempt status is a federal issue controlled by the IRS, not the state, and the California Supreme Court specifically addressed the issue of religious leaders being "forced" to perform gay marriages in their ruling.

From the California Supreme Court decision:
"[A]ffording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs."

To learn more about what the Supreme Court said, you can read the official Supreme Court press release or the entire Court opinion.

The religious argument over gay marriage can't be resolved in one web page. Conservatives can point to scriptures such as 1 Corinthians 6:9 that lists those who will not inherit the kingdom of God, while liberals can point to scriptures such as Romans 14:13 and its instruction to "let us not judge one another anymore, but rather determine this - not to put an obstacle or a stumbling block in a brother's way."

For those who'd like to read more about differing viewpoints of New Testament scripture about homosexuality, you'll find some excellent essays at Religious Tolerance.org, a site that attempts to provide objective information about a variety of religions and topics of interest to the public.

Another good reference is the California Council of Churches' Marriage Equality Study Guide, which was developed as a resource for religious congregations.

The California Supreme Court will hear legal arguments for and against Prop 8's ban on same-sex marriage, but here are some questions for everyone to think about.

1. Should a state constitution take away existing rights? Same-sex marriage became legal in California in May 2008 and thousands of couples were able to marry for the first time. Prop 8 took away that right. Is the state constitution a place to enshrine discrimination?

2. Has legalized same-sex marriage impacted your life negatively? Same-sex marriage has been legal in Massachusetts since 2003 and in Connecticut since November 2008. It is also legal nationwide in five countries, including Canada. So has it changed your life? Has it changed your religious beliefs or impacted your relationships? Has it made you think less of marriage in general?

3. What non-Biblical reason is there to deny legal status to couples who want to be financially and legally responsible to one another for the rest of their lives? If you can't think of a non-Biblical reason, are you comfortable allowing the Bible to be the basis of a legal right (or lack thereof)? Who determines how the Bible is interpreted? At least a dozen Jewish movements and mainstream Christian denominations already allow clergy to perform marriage or union ceremonies for same-sex couples. Why should the views of these denominations be any less valid?

4. If same-sex marriage should be denied because the Bible says it is a sin, what about other relationship sins? What about adultery? What about divorce? What about people who live together "in sin" before getting married? Should they all be denied legal marriage rights? And why is it ok to ignore some outdated ideas in the Bible - for instance, people who work on the Sabbath should be put to death and slavery is ok and beating your children is encouraged - but not others?

5. If same-sex couples aren't allowed to marry and the law doesn't recognize their relationship, if a couple who has been together 10 or 20 years is in a car accident and one of them is severely injured, who should make decisions for the injured person? Who should be allowed to visit him or her in the hospital? Who should be financially responsible if he or she can't afford the bill, but the long-time partner can? Should the state be responsible for making decisions for an adult in a committed, loving relationship because the law refuses to accept that person's relationship?

6. Ten states and the District of Columbia currently have laws that recognize same-sex relationships to varying degrees, although only five of these grant virtually equal rights to same-sex couples. However, these relationships are NOT recognized by states outside the one in which they are granted, and the federal government does not recognize these relationships at all. NO same-sex couple in this country, including those in the states with full domestic partnership/civil union rights, has the same rights as a straight married couple. Marriage for straight couples, on the other hand, is recognized by all states and the federal government. So a straight couple who is married in California can move to Kansas or Utah or West Virginia or anywhere else and have full rights. But if a same-sex couple from California is merely traveling out of state and suddenly needs emergency medical care (see question 5 above), their registered domestic partnership is not recognized at all. Do you think that's fair?

7. How does denying financial and legal rights and responsibilities to a same-sex couple advance the "sanctity of marriage"? How are financial and legal responsibilities related to religious beliefs?

8. How important is a word? Should gay couples have the same legal rights under a different name, such as civil union or domestic partnership? Or should the word "marriage" continue to be the legal term and "holy matrimony" be the religious term?

9. In Wisconsin, it is actually a crime for a same-sex couple to get legally married in another state or country where it is legal and then return home to Wisconsin. But it's not a crime in Wisconsin to have a religious marriage ceremony in that state or in any other because the couple is not entering into a legal contract. Does that make sense? Can you imagine a state telling a straight couple they can't go to Las Vegas to get married unless they want to face criminal charges when they return home?

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Even before the state Supreme Court legalized gay marriage in California, the state allowed same-sex couples to form legally binding domestic partnerships. Many people wonder why the state can't just continue to have two separate legal statuses, one for straights and one for gays. This is what the Supreme Court said in its May 2008 ruling that reiterated the idea that separate but equal is never equal.

From the Supreme Court ruling:
"While retention of the limitation of marriage to opposite-sex couples is not needed to preserve the rights and benefits of opposite-sex couples, the exclusion of same-sex couples from the designation of marriage works a real and appreciable harm upon same-sex couples and their children."

"...Furthermore, because of the historic disparagement of gay persons, the retention of a distinction in nomenclature by which the term "marriage" is withheld only from the family relationship of same-sex couples is all the more likely to cause the new parallel institution that has been established for same-sex couples to be considered a mark of second-class citizenship. Finally, in addition to the potential harm flowing from the lesser stature that is likely to be afforded to the family relationships of same-sex couples by designating them domestic partnerships, there exists a substantial risk that a judicial decision upholding the differential treatment of opposite-sex and same-sex couples would be understood as validating a more general proposition that our state by now has repudiated: that it is permissible, under the law, for society to treat gay individuals and same-sex couples differently from, and less favorably than, heterosexual individuals and opposite-sex couples."

In 2004, the US Government Accountability Office prepared a document listing the 1,138 federal statutory provisions in which marital status is a factor in determining or receiving benefits, rights, and privileges. Same-sex couples in ALL states, including those that have domestic partner laws and those that now allow same-sex marriage (Massachusetts and Connecticut), are denied these rights.

TIME Magazine has an article noting how same-sex couples in committed relationships are negatively impacted by being denied these rights.

One of the most interesting statistics I've come across regarding the financial impact of not allowing gay marriage under federal law comes from the Congressional Budget Office:

The Congressional Budget Office (CBO) estimates that on net, (the impact of allowing same-sex marriage) would improve the budget's bottom line to a small extent: by less than $1 billion in each of the next 10 years

The CBO may consider $1 billion to be a "small extent," as it's a small fraction of the overall federal budget, but that's still a big number. By the federal government's own analysis, keeping gay marriage illegal is costing ALL U.S. taxpayers $1 billion. Gives you something to think about, eh?

I came across an excellent blog post on MOMocrats that gives six arguments in favor of marriage equality. These include civil rights, civil liberty, economics, freedom of choice, life cycle decisions, and separation of church and state. It's well written and worth a read.

Prop 8's impact on education was one of the main issues of the campaign. The Yes on 8 campaign argued, "...schools will now be required to teach students that gay marriage is the same as traditional marriage, starting with kindergarteners." (From the ProtectMarriage.com website)

They cited California Education Code Section 51890 to support this claim. However, even before the election, a judge ruled that this claim was misleading, and the State Superintendent of Public Instruction told The Chronicle, "...(legalized gay marriage) just isn't going to require any kind of teaching of personal relationships or lifestyle."

Here is what the relevant section of the code says:

51890. (a) For the purposes of this chapter, "comprehensive health education programs" are defined as all educational programs offered in kindergarten and grades 1 to 12, inclusive, in the public school system, including in-class and out-of-class activities designed to ensure that:

(1) Pupils will receive instruction to aid them in making decisions in matters of personal, family, and community health, to include the following subjects:

...(D) Family health and child development, including the legal and financial aspects and responsibilities of marriage and parenthood.

In August 2008, Sacramento County Superior Court Judge Timothy Frawley ruled that Prop 8 supporters must remove wording from their official ballot argument saying schools would be required to teach children there is no difference between gay marriage and traditional marriage. The judge said the argument was false, since "...children cannot be required to attend any health-related instruction, including instruction on the subject of marriage, against their parents' will." The judge cited California Education Code Section 51240.

That section of the code says:

51240. (a) If any part of a school's instruction in health conflicts with the religious training and beliefs of a parent or guardian of a pupil, the pupil, upon written request of the parent or guardian, shall be excused from the part of the instruction that conflicts with the religious training and beliefs.

An anonymous document called "Six Consequences the Coalition Has Identified if Proposition 8 Fails" has been circulating online, making a number of claims about why voters should take away the right of same-sex couples to marry.

Morris A. Thurston, a Mormon legal scholar, has responded publicly, saying that the advertising claims for the Yes on 8 campaign are "misleading."

Thurston's response makes has been posted to Mormons for Marriage, a website sponsored by Mormons who do not support their Church's active campaign against gay marriage.

The complete text is also available on the No on Prop 8 site.

Proponents of same-sex marriage filed three court challenges the day after Prop 8 passed. According to the Associated Press, "the lawsuits raise a rare legal argument: that the ballot measure was actually a dramatic revision of the California Constitution rather than a simple amendment. A constitutional revision must first pass the Legislature before going to the voters."

In addition, 43 Democratic state legislators have asked the state Supreme Court to void Prop 8, saying in a friend of the court brief, "If Proposition 8 takes effect, this court will no longer be the final arbiter of the rights of minorities."