Differences Between California's Prop, Prop 22

Same-sex Marriage Under Scrutiny with Warren's Selection

Jan 1, 2009

The argument regarding the constitutionality of same-sex marriage has lately been in a different, more political arena - President-elect Barack Obama's inauguration.

The latest battle has to do with Obama’s choice of pastor Rick Warren to give one of the prayers at his Jan. 20 inaugural ceremony. Gay marriage supporters are crying foul; they are upset because of Warren’s outspoken approval of keeping marriage between a man and a woman and because his Saddleback Church was heavily involved in the Proposition 8 campaign in California. They feel it’s an inappropriate choice for the Democratic president-elect.

The issue, however, is far more complex than how one well-known pastor feels about it. Proposition 8, which was an incredibly divisive issue during 2008’s campaign, is just one small step in a much bigger picture. That measure, which passed by a margin of 52 percent to 48 percent on Nov. 4, has had far-reaching results as opponents of the measure lashed out at those who supported it, including Warren’s Saddleback Church, The Church of Jesus Christ of Latter-day Saints and members of minority groups who favored the measure.

Proposition 22

But Prop. 8 came into play only recently, after a May 16, 2008, California Supreme Court decision to overturn Proposition 22, the original “Defense of Marriage Act,” which stated, “Only marriage between a man and a woman is valid or recognized in California.” That initiative passed by a 23-point margin in 2000; more than 60 percent of California voters said yes to it, and it won in 52 of California’s 58 counties and all the major metropolitan areas except San Francisco, according to the Marriage Law Project.

The state court struck the law down because domestic unions are not a sufficient substitute for marriage, according to the 4-3 majority opinion as quoted by a May 16 Associated Content article by James Scott Flannery. However, that doesn’t even begin to answer the questions surrounding the controversy. Justice Marvin Baxter, one of the three dissenters, said he agreed with some of the majority opinions but felt that the issue should be decided by the voters, not the courts.

And it has been, twice. This time, the ballot initiative read that Proposition 8 “eliminates the right of same-sex couples to marry,” according to the California Secretary of State’s office. The state-produced voters guide also included a concern that the state would lose millions of dollars in sales tax revenue throughout the next few years but didn’t anticipate any long-term effects.

Prop. 8 also changes the California Constitution, which is how supporters are trying to stay clear of the court’s decision. That in itself raises more issues; the questions of a two-thirds instead of a simple majority or greater legislative involvement remain unanswered.

Legal Matters

So far, although a case has been filed to strike down the constitutionality of this initiative, all the high court has done is agree to hear it and rule that the new law will take effect unless and until they have decided otherwise. The motion asks the court to consider if Prop. 8 violates the separation of powers doctrine or if, since it could be considered a revision to the state’s constitution instead of an amendment, it is invalid.

At this time, Proposition 8 is a valid law and homosexual couples cannot be married in California, leaving Connecticut, New Jersey and Massachusetts the only states where it is legal. The question of what will happens to the thousands of gay couples who got married between May and November is still another one that has yet to be answered.

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