Gays Lose Right to Marry in California

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A majority of California voters approved a constitutional amendment banning gay marriage in the state on Nov. 4. 

Voters approved Proposition 8 by 52.4 percent to 47.6 percent, thus negating the May 2008 state Supreme Court decision legalizing same-sex marriage:

Theories abound as to why Proposition 8 passed, even though the polls showed it would lose.

Did it pass because the gay side’s well-funded TV ads were so bad and the other side’s well-funded TV ads were so effective?

Did it pass because blacks turned out in large numbers to vote for Barack Obama and 70 percent of them voted for Proposition 8?

Did it pass because Catholic priests fired up their flocks with pro-Proposition 8 sermons two days before Election Day? Polling showed that only 44 percent of Catholics supported Proposition 8, but 64 percent of them ended up voting for it.

Did it pass because people lie to pollsters if telling the truth would make them seem like bigots?

And regardless of the reasons, what happens now?

Are the 18,000 same-sex couples that have married in California still married?

No one knows, although state Attorney General Jerry Brown has opined that Proposition 8 is not retroactive.

The California Constitution now states, “Only marriage between a man and a woman is valid or recognized in California.”

Does that make the California Constitution in conflict with itself, given that the state Supreme Court found that the constitution contains a fundamental right to same-sex marriage?

Lawyers for groups opposing the measure filed suit in the state Supreme Court on Nov. 5 seeking to stop Proposition 8 from taking effect. They argue that the measure is more than an amendment to the constitution; rather it is a revision that fundamentally alters the guarantee of equal protection.

Constitutional revisions require a two-thirds vote of the Legislature to reach the ballot. Proposition 8 got on the ballot by activists’ collecting signatures on petitions.

“Proposition 8 is invalid because the initiative process was improperly used in an attempt to undo the constitution’s core commitment to equality for everyone by eliminating a fundamental right from just one group—lesbian and gay Californians,” said the American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights.

“Proposition 8 also improperly attempts to prevent the courts from exercising their essential constitutional role of protecting the equal protection rights of minorities,” the groups said. “According to the California Constitution, such radical changes to the organizing principles of state government cannot be made by simple majority vote
through the initiative process, but instead must, at a minimum, go through the state legislature first.”

Legal experts said these arguments have merit but may be a long shot.

So, for the time being, if you want to marry someone of the same sex in the United States, you must head for Massachusetts or Connecticut.

At press time, same-sex marriage was expected to become possible in Connecticut on Nov. 12 when a Superior Court judge was expected to enter final judgment in a case that was decided by the state Supreme Court.

Massachusetts has let same-sex couples marry since 2004, when the Supreme Judicial Court struck down a law that limited marriage to opposite-sex couples.

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