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California Voters Pass Ban on Gay Marriage [with extended comments]

Thursday, November 6, 2008 • 7:43 am

Very very very nice.

Let’s just point out what is obvious anyway.

—On Obama coattails.

—On an anti-Repubican night.

—After the fact amendment, after the gay activists had managed to establish facts-on-the-ground, which aids in their Juggernaut-Inevitability Illusion quest.

—In California.

. . . .Wait.  Let me repeat that.

In California.


Actually, folks, if conservatives so choose in California—if they so choose—and outside of California, this could easily represent the high-water mark of the gay activist movement.  We are 30 for 30 in passage of state amendments.  And this victory—when the left had everything going in their favor—is simply stunning.  Decisive.  Breathtaking. 

But wait.  Why am I posting this, when we’ve already had discussions on two other threads about the passage of Prop 8?

Note that the gay activists never conceded the passage of the amendment.  Why? 

Well in part in order to dampen the reality of the victory of the other side.  That’s the whole Juggernaut-Inevitability-Illusion quest.  They need Americans—they need you to think that it’s inevitable.

It ain’t.

So a part of the reason for Wednesday night’s “we want to make sure it passed, we’re just not sure, we need to count every vote” rhetoric was so that they could prepare their lawsuit with as few headlines blaring Prop 8’s victory as possible, so that the news headlines on Thursday would be about the lawsuit, not about the actual passage of Resolution 8.

They’re good at this, folks.  And we can learn from them.  But at least in this small blog, we’re not going to allow them to get away with the illusion quest.

Prop 8 passed.  Traditional values won.  This small front won. 

Now we move on to other fronts.  The coalition that was built during this fight needs to last, and build larger networks.  I pray that those in California who have won these valuable lessons, and won in the face of insurmountable odds, and trounced the Juggernaut-Inevitability-Illusion will take some valuable intel out of this.  And prepare for further battles.

From Fox News:

LOS ANGELES—California voters have adopted a constitutional amendment outlawing same-sex marriage, overturning the state Supreme Court decision that gave gay couples the right to wed just months ago.

The passage of Proposition 8 in Tuesday’s election represents a crushing political defeat for gay rights activists, who had hoped public opinion on the contentious issue had shifted enough since the state overwhelmingly passed an earlier gay marriage ban in 2000 to help them defeat the measure.

“We pick ourselves up and trudge on,” Kate Kendell, executive director of the National Center for Lesbian Rights, said early Wednesday when it appeared the measure was headed for passage. “There has been enormous movement in favor of full equality in eight short years. That is the direction this is heading, and if it’s not today or it’s not tomorrow, it will be soon.”

With almost all precincts reporting, election returns showed the measure winning with 52 percent. With election officials and others estimating 2 million to 3 million provisional and absentee ballots remained to be tallied, leaders of the No on 8 campaign said they were not ready to concede.

And oh yeah—I’m updating my 8 Things I Rejoice In post.

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Sarah, my bet is that the Cali Supreme Court will overturn this as somehow being a ‘revision’ and not an amendment, or that this amendment is somehow unconstitutional. 

It’s not over, and I fear this is a short-lived victory.

[1] Posted by Paul B on 11-06-2008 at 08:52 AM • top

I don’t see how a state court could possibly declare an amendment to a state constitution to be unconstitutional under said state constitution.  They would need a federal court to declare it unconstitutional under the federal constitution.  Maybe after 8 years of Obama appointees that might happen, but not any time soon.

[2] Posted by AndrewA on 11-06-2008 at 08:56 AM • top

Andrew, the court has the power it takes.  It will say that the Prop 8 amendment is against the equal protection clause of the existing constitution, and therefore is null and void. 

Alternatively, it will buy into the the “it’s a revision not an amendment” idea.

I’m just a pessimist on this, I guess.

[3] Posted by Paul B on 11-06-2008 at 09:03 AM • top

Again, as I said in my post on the things to rejoice about after the election, we need to cut the flow of funds into the entertainment industry—an industry which used our money to oppose Prop 8.  Do not feed the beast.  Work to develop Christian and faith based means of entertainment.  Reclaim our creativity for ourselves.

[4] Posted by Recently Roman on 11-06-2008 at 09:06 AM • top


I’m pretty sure AndrewA is right - the voters decide what goes into the state constitution, not the judges. Courts may declare laws unconstitutional, but by definition, they can’t declare the constitution unconstitutional.

[5] Posted by Greg Griffith on 11-06-2008 at 09:09 AM • top

Also - note the “internals” of the vote: It was black churchgoers, turning out en masse to vote for Obama, who made the difference.

Layer upon layer upon layer of sweet, delicious irony.

[6] Posted by Greg Griffith on 11-06-2008 at 09:27 AM • top

Greg, I agree with your thinking in this case, but I’m not sure the Cali Supreme Court does.

What would happen in the people of California passed an amendment initiative that said hispanics could not hold public office?  Do you think the Cali Supreme Court would let that stand?

I can’t imagine a supreme court of any state or at the US level saying that something was a constitutional issue and they can’t get involved. grin

[7] Posted by Paul B on 11-06-2008 at 09:30 AM • top

Paul B,

I agree with you in that should an amendment pass in California declaring that their state Constitution prohibited hispanics from holding public office it would be declared unconstitutional.  However, that would be because it is unconstitutional under the 14th Amendment of the U.S. Constitution.  In the case of Prop 8, marriage has traditionally been an area covered by the states per the 10th Amendment.  The Federal government has never had any say in marriage laws until the DOMA in the 1990s.

[8] Posted by Or2Dox on 11-06-2008 at 11:28 AM • top

Or2Dox, if you can find a right to hold office in that amendment then they can find a right to get married.

[9] Posted by Paul B on 11-06-2008 at 11:39 AM • top

I’m not constitutional scholar, but I think that having a state consitution declared unconsititutional under the federal constitution would take a federal court.

[10] Posted by AndrewA on 11-06-2008 at 11:46 AM • top

Andrew, I’m not a lawyer, either, and I slept through Con Law, so I’m just guessing myself. 

I think that there is an equal protection clause in the California Constitution, and that’s probably what’s at stake.

Can anyone tell me when the gays can try to overturn this by putting forth their own amendment initiative?  Is there a waiting period, or is California going to go through this every election cycle?

[11] Posted by Paul B on 11-06-2008 at 11:56 AM • top

Paul B,

Wouldn’t the amendment instituted via Prop 8 supercede any “equal protection clause” in the California Constitution with respect to gay marriage?

[12] Posted by Or2Dox on 11-06-2008 at 12:00 PM • top

For what it’s worth, I read that the gay rights proponents tried to knock Propositon 8 off the ballot BEFORE the election on the very same grounds they are now challenging it.  The court rejected the argument at that time, but without any comment.  The gay rights folks are banking on the hope that the Court did not issue comments in their July ruling, thus negating that ruling from having any precedential value (i.e. the Court decided to leave Proposition 8 on the ballot in hopes it would be defeated, and then the issue would die).  But I really wonder if the Court, which unanimously dismissed this argument once, albeit with no comments, would - AFTER the majority spoke AGAIN - suddenly do an about face and make a really questionable constitutional decision.  But, Paul B. is right, you never know with liberal activists judges.  If liberal judges actually followed the law, then we wouldn’t be in the position we are today.  See the following two articles:

From here:

Challenge to Calif. Gay Unions Measure Fails
Mike McKee

Any chance that California voters wouldn’t have their say on same-sex marriage was put to rest Wednesday when the state Supreme Court refused to review a challenge to the November ballot initiative’s validity.

The high court’s unanimous decision to leave Proposition 8, which would limit marriage to heterosexual couples, on the ballot didn’t surprise at least two legal experts, though both thought the arguments raised by civil rights groups had merit.

“I think it’s a sign the court doesn’t want to short-circuit the democratic process, and was worried about the appearance of overreaching after such a historic ruling in May,” Elizabeth Hillman, a constitutional law professor at Hastings College of the Law, said Wednesday.

Santa Clara University School of Law professor Gerald Uelmen, a leading expert on the California Supreme Court, agreed, noting that the court doesn’t like to tamper with ballot initiatives in advance of elections unless there’s no choice.

“It’s only done so on very rare occasions,” he said, “and usually on the basis of a violation of the single-subject rule.” (Ballot measures cannot involve more than one subject.)

The National Center for Lesbian Rights, the American Civil Liberties Union, Equality California and the Lambda Legal Defense and Education Fund filed Bennett v. Bowen, S164520, on June 20, about five weeks after the California Supreme Court OK’d same-sex marriage. They argued that the proponents of Prop 8 had misstated the initiative’s effects and that it was not a constitutional amendment as advertised but a constitutional revision that required legislative approval.

Conservative groups responded by accusing their opponents of trying an end run that would keep voters from deciding whether to amend the state constitution to restrict marriage to a union of one man and one woman. They claimed victory on Wednesday.

“[Wednesday’s] court decision delivers a significant blow to our opponents, and it sends a strong message to them that they won’t be able to evade democracy by keeping this ballot initiative away from the voters of California,” said Jennifer Kerns, spokeswoman for “This is the same group of individuals who time and time again have tried to go to the court system rather than to the voters.”

Mathew Staver, president and founder of the Florida-based Liberty Counsel, which has aggressively fought same-sex marriage in several states and at the federal level, said he has no doubt Prop 8 will pass.

“That’s why the ACLU and Lambda Legal tried to take the right away from the people,” he said. “They fear it will pass.”

Wednesday’s denial appears to leave opponents of Prop 8 with no legal recourse to stop the initiative. The civil rights groups said as much Wednesday in a prepared statement that expressed disappointment at the decision and a vow to campaign for Prop 8’s defeat.

“We have been focused on continuing the election and moving forward, talking to voters and working in the precincts—asking Californians to Vote No on 8,” the statement said. “Californians do not want their Constitution to single out people to be treated differently.”

One person involved with the case—and in favor of same-sex marriage—said the constitutional revision argument remains good and available for use if Prop 8 passes.

“I hope we don’t need it,” this person said on condition of anonymity. “But if we do, the court hasn’t precluded it from being made.”

In their suit, the civil rights groups had argued that the proposed amendment is in reality a revision because it seeks to deny fundamental rights to a select group of people and limits the courts’ powers to enforce equal protection. Revisions, they noted, require a two-thirds approval by the state Legislature.

Uelmen said that argument was “persuasive,” while Hillman called it a “very deft maneuver.”

“Based on the distinction between a revision and an amendment,” Hillman said, “this [proposition] looks substantial and far-reaching enough to be considered a revision.”

Hillman, Uelmen and Jesse Choper, a constitutional law professor at UC-Berkeley School of Law, also felt the effort to get Prop 8 off the ballot had been worth trying, even though it failed.

“The state Legislature has voted for same-sex marriage a couple of times,” Choper said. “[Opponents of Prop 8] have everything to gain and nothing to lose.”

Uelmen said he initially thought pushing the vote beyond 2008 would increase chances that the ballot amendment would be beaten, “because public opinion is shifting in this area.”

“But I’m starting to think,” he continued, “that perhaps now is the best time to have this on the ballot ... I think [Barack] Obama’s going to bring out a lot of young voters, and clearly the polls suggest that younger people are much more accepting of gay marriage.”

See also:

Challenge tossed, gay marriage ban on ballot
Bob Egelko, Chronicle Staff Writer

Thursday, July 17, 2008
(07-16) 16:28 PDT SAN FRANCISCO—Californians will get to vote in November on a state constitutional amendment to ban same-sex marriage, the state Supreme Court decided Wednesday.

In a unanimous order, without comment, the court dismissed a lawsuit by gay rights advocates seeking to remove an initiative sponsored by conservative religious groups from the Nov. 4 ballot. The measure, Proposition 8, would overturn the court’s 4-3 ruling May 15 that allowed gay and lesbian couples to marry in California.

The suit, on behalf of couples who had challenged the state’s previous ban on same-sex marriage, argued that Prop. 8 would destroy fundamental rights that cannot be changed by a voter initiative. The court rarely takes up legal challenges to a ballot measure before an election, and could consider the same issue in another lawsuit if the measure passes.

The suit was “a desperate effort to keep the amendment away from the democratic process,” said attorney Glen Lavy of the Alliance Defense Fund, which represents sponsors of Prop. 8.

Their opponents - Equality California, the National Center for Lesbian Rights, Lambda Legal and the American Civil Liberties Union - said they were disappointed but undaunted in their efforts to defeat the ballot measure.

Like one of the laws the court struck down in May, Prop. 8 declares that “only a marriage between a man and a woman is valid or recognized in California.”

The court majority declared two months ago that denying marriage to same-sex couples discriminates against them because of their sexual orientation and violates their fundamental right - contained in the right of privacy that state voters approved in 1972 - to marry the partner of their choice.

The lawsuit against Prop. 8 argued that the one-sentence initiative was actually a broad attack on basic rights recognized by the court - a measure that would simultaneously deprive one group of fundamental freedoms by majority vote and strip the courts of their ability to enforce constitutional guarantees.

Although its backers call it a constitutional amendment, Prop. 8 is actually a constitutional revision, the suit contended. A revision must be submitted to the voters by a two-thirds majority of the state Legislature.

The last time the court accepted such an argument was in 1990, when it overturned part of a voter-approved constitutional amendment on crime. In that case, the justices said a provision requiring state judges to follow federal interpretations of defendants’ rights was a broad attack on judicial authority and a “fundamental change in our ... governmental plan.”

Lawyers for the Prop. 8 backers argued that an amendment to restore the state’s previous definition of marriage would leave courts with “full authority to continue protecting the rights of minorities.” They said equally far-reaching changes in California law - for example, the restoration of the death penalty in 1972 and the overhaul of the tax system under Proposition 13 in 1978 - were accomplished by initiative.

The case decided Wednesday was Bennett vs. Bowen, S164520.

[13] Posted by jamesw on 11-06-2008 at 12:56 PM • top

The homosexual movement largely controls the prominent law firms and law schools in California.  You cannot get hired by a prestigious law firm unless you first get vetted by the “Diversity Committee.”  Needless to say, you have to meet the requirements on believing in inclusion and diversity.  Here’s just one example of who controls hiring in a prestigious law firm:  All the major firms have such committees that control hiring.

The large national companies that are the clients of these firms require that a certain percentage of their attorneys must be gay and lesbian before they qualify for being given legal work.  (My firm, in another state, has lost work because we refuse to cooperate in providing our “gay and lesbian” information to them on the ground that it is none of our business to inquire as to our lawyers’ sexual behavior, nor is it any of their business either.  So we don’t qualify for being given work by institutions like Bank of America.)

In siginificant parts of California, as a practical matter you cannot become a judge if you have been affiliated with such dangerous homophobic organization as the Boy Scouts, or happen to be of a politically incorrect religious persuasion (nominal Episcopalians fine, but forget it if you are Mormon or a practicing Christian).  There is already a huge element of Sodom & Gomorrah culture operating, especially in the cities and wealthier coastal areas.

[14] Posted by Jim the Puritan on 11-06-2008 at 12:57 PM • top

#12:  I would highly suspect the court kicked it out simply because it was “premature.”  In other words, under normal rules of jurisprudence there isn’t a valid legal challenge until the measure actually passes and is enforced.  This is mainly for reaasons of “judicial economy,” otherwise courts would have to consider all sorts of things that might never pass in the first place.

[15] Posted by Jim the Puritan on 11-06-2008 at 01:02 PM • top

The California Court can rule on the propriety of referenda.  So, if was argued but not decided before the balloting, the referendum was improper, its passage can be nullified.  At least that is what my buddy who practices law out there tells me.  I am not a Californian nor a lawyer so I merely reflect what he said.

And of course, the vote was close enough to suggest another ballot might go the other way.  So, that campaign is likely to begin soon. 

I am amused that at the same time Senator Obama’s voice recording was used by the pro-8 campaign, the writers here have him on the other side.  I wonder if anyone other tha his he knows what he actually thinks.


[16] Posted by jimB on 11-06-2008 at 01:40 PM • top

Jim the Puritan said:

“Here’s just one example of who controls hiring in a prestigious law firm: All the major firms have such committees that control hiring.”

I read the page, and it has “no straight white males” written all over it.  Not very inclusive, huh?  How does that pass EEO muster? 

Maybe I would hint that, while married, I was actually bisexual.  Yeah, that would get me in the club.

[17] Posted by Paul B on 11-06-2008 at 02:38 PM • top

Sarah:  One very important caution to your analysis here is that Proposition 8 won in part BECAUSE of the high turnout of some of Obama’s biggest supporters - namely the African-American community.  They overwhelmingly voted in favor of Proposition 8, in much greater proportion then any other racial group.

Another caution is that the liberals apparently put all their eggs in the Obama basket.  In a future election, the Democratic party machine could play a much more supportive role for gay marriage then it did this year.

On the flip side, your comment about this being won after liberals had established “facts on the ground” is right on.  In fact, polls (and anecdotal discussion) showed that a much larger percentage of Californians believe marriage is one man/one woman then who voted Yes on Proposition 8.  A lot of people were reluctant to vote Yes on 8 because they didn’t want to “take away a fundamental constitutional right.”  So a future pro-gay marriage initiative will have a much harder fight.

[18] Posted by jamesw on 11-06-2008 at 03:12 PM • top

jamesw: no question about it, voters have a very strong bias toward preserving the status quo. So do politicians, with Exhibit A being Gov. Schwarezenegger, who had previously vetoed legislation to establish gay marriage, but refused to support Prop 8.

8’s opponents knew this well, and did everything they could to make it look like this was all about a bunch of Mormons and fundamentalists suddenly getting it into their heads to barge into our state and take away one of our long-cherished civil rights.

[19] Posted by LongGone on 11-06-2008 at 04:49 PM • top

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