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Prop 8: 18,000 Same-Sex Marriages Hang in Balance at California Supreme Court Hearing

Within the next week, the California Supreme Court will hear oral arguments to help determine the constitutionality of Proposition 8, the November 2008 election ballot constitutional amendment that removed the right of same-sex couples to legally marry in California.


The Court will convene in San Francisco on March 5, at 9 a.m. to 12 p.m. The arguments could possibly continue to be heard on March 6. (The Court address is 350 McAllister Street, San Francisco 94102. For more information, the Court's Clerk can be reached at 415.865.7000.)

The Court, which must issue its decisions within 90 days, will also consider the fate of over 18,000 same-sex marriages that occurred between June 17, the date of the first legal same-sex California marriage, and the November 4 election.

To increase public access to the court session, the Court has designated the California Channel, a public affairs cable network, to provide a live TV broadcast of the session and to serve as the "pool" channel. California Channel will provide a press pool outside the State Building to facilitate coverage of the oral argument by television and radio stations. Check with you local cable company for any scheduled coverage in your area.

Prop 8 reached the 2008 California ballot in response to a decision by the Court to overturn the 2000 ballot initiative Proposition 22. The Court ruled on May 15, 2008, that Prop 22 violated the state Constitution and was therefore invalid. In addition, the Court struck down related California law in a 4-3 decision and thus gave same-sex couples the right to marry. Chief Justice Ronald George, and Associate Justices Carlos Moreno, Joyce Kennard, Kathryn Mickle Werdegar, Ming Chin, Marvin Baxter and Carol Corrigan adjudicated the case. Chief Justice Ronald George was the deciding vote that struck down Prop 22.

Following passage of Prop 8, the American Civil Liberties Union, Lambda Legal, National Center for Lesbian Rights, and the cities of San Francisco and Los Angeles filed lawsuits challenging the constitutionality of the vote.

The lawsuits charge that Prop 8 is invalid because the initiative process was improperly used to undo the constitution’s core commitment to equality for everyone by eliminating a fundamental right from just one group – lesbians and gay men. Also, that Prop 8 “improperly attempts to prevent the courts from exercising their essential constitutional role of protecting the equal protection rights of minorities” and that such “radical changes to the organizing principles of state government...must, at a minimum, go through the state legislature first.”

California Attorney General Jerry Brown wants Prop 8 overturned. He says: "The California Constitution protects certain rights as ‘inalienable.’ Including a right to liberty and to privacy, which the courts have said includes a person's right to marry.” Perhaps, somewhere, our country's promised “pursuit of happiness” should be addressed.

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The arguments will be made before the same nine-member court that first legalized gay marriages last spring. In effect, the Court would have to rule that it’s decision of May 15, 2008, is now invalid because Prop 8 has, in reality, removed equal protection from the California Constitution. From my layman’s standpoint, that seems totally wrong.

For the November 2008 election, Schubert Flint Public Affairs was hired to handle the Yes on 8 campaign.
Schubert describes himself “As one of the most successful issue management and public affairs professionals in America,” and he has several national awards to prove it.

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No on 8 went with Equality California (EQCA) headed by Geoffrey Kors. Founded in 1998, EQCA’s mission was to “build a state of equality in California...for lesbian, gay, bisexual, and transgender (LGBT) individuals...” Unfortunately, it was not well experienced in passing/fighting ballot propositions. EQCA proved no match for Schubert Flint.

Yes on 8 used both Barack Obama’s and Joe Biden’s lack of support for same-sex marriage to their advantage. No on 8 did not use Obama’s and Biden’s call for the defeat of Prop 8.

Yes on 8 widely used a press conference given by San Francisco Mayor Gavin Newsom following the Court’s marriage decision in May. According to Schubert, “Like Howard Dean once did, Newsom got increasingly excited the longer he addressed the crowd until, with a smirk on his face and his arms fully extended, he exclaimed, ‘This door’s wide open now. It’s gonna happen—whether you like it or not.’ That 7-second sound bite perfectly summarized for California voters why this issue was before them, reminding voters that four judges had overruled four million voters by imposing same-sex marriage on California.” No on 8 did not counter this attack.

The arrogant straight Newsom became the poster boy for Yes on 8.

Neither group is taking anything for granted in the PR effort leading up to the March 5 hearing. Those fighting to keep Prop 8 valid are continuing their prayer circles and lobbying efforts. No on 8 is rallying support with a very personal and emotional video showing the effects of forcing 18,000 gay and lesbian couples to divorce. Unfortunately, No on 8 continues to give Mayor Newsom a role even though it appears that Newsom is busy channeling public opinion in favor of reversing Prop 8 into support for his nascent gubernatorial campaign.

carl matthes

Carl Matthes