Issue:  Vol. 48 / No. 7 / 15 February 2018

Breaking: CA Supreme Court upholds Prop 8; 18,000
marriages stand


Chief Justice Ronald George. Pool photo
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The California Supreme Court upheld Proposition 8, the ballot measure that banned same-sex marriages in the state, by a 6-1 vote Tuesday, May 26. But the seven justices unanimously ruled that the 18,000 marriages that took place during the five months before the ban went into effect last November are still valid under California law.

In its 136-page majority opinion, written by Chief Justice Ronald M. George, the court decided that Prop 8 is an not a revision to the state constitution, and therefore, can be adopted by a simple majority vote by the people.

The justices determined that Prop 8 carves out a limited exception to the constitution by reserving the official designation of the term "marriage" for the union of opposite-sex couples, but leaves undisturbed all of the other aspects of a same-sex couples' constitutional right to establish an officially recognized and protected family relationship and to the equal protection of the laws.

Justice Carlos R. Moreno, while agreeing with the majority's conclusion that Prop 8 applies only prospectively – and therefore the marriages that took place are legal – bucked the majority by writing a dissenting opinion stating Prop 8 is invalid because it is not a lawful amendment of the California Constitution.

The court's decision places California years behind states like Iowa and Vermont, where same-sex marriages recently became legal, and even the District of Columbia, where the City Council recently voted to recognize same-sex marriages performed elsewhere. LGBT advocates have vowed to return to the Golden State's ballot, likely as soon as the November election in 2010, to repeal Prop 8.

The decision, issued at 10 a.m., was widely expected by the LGBT community and its legal advocates following the March 5 oral arguments in the three cases filed with the court after voters approved Prop 8 by a slim majority last fall. Despite the justices' historic ruling last May 15 granting full marriage rights to same-sex couples, they signaled during the hearing that they could not see a legal reason to throw out Prop 8.

In their majority ruling, the justices decided that same-sex couples have the right to all the substantive rights of marriage but not the right to call it "marriage." Prop 8 only affects what the government calls a relationship, the decision said.

"...Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion," the decision states, referring to last year's marriage ruling. "Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term 'marriage' for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple's state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws."

With hundreds of people in the city's Civic Center to await the decision, about 100 moved to block Van Ness Avenue at Grove in front of City Hall immediately after the ruling was issued. Another 150 people stood near the protesters, many of whom were blessed by clergy.

It was inside City Hall back in February 2004 that San Francisco Mayor Gavin Newsom kick-started the marriage movement by ordering city officials to wed same-sex couples.

His decision sent cultural and political shockwaves across the country. It also generated the first batch of cases the court heard last year that sought an end to California's anti-gay marriage statutes.

The mayor's stance also fueled the drive by anti-gay and conservative religious groups to place the constitutional amendment on the ballot. They successfully used Newsom's declaration inside City Hall last May after learning the court had ruled in favor of marriage equality that "like it or not" same-sex couples could now wed in their television advertisements pushing passage of Prop 8.

This morning it was LGBT ministers who led a service at St. Francis Lutheran Church in the gay Castro District to pray for justice and to also offer a prayer of protection to those individuals planning to participate in the civil disobedience actions.

Following the service, a group of 125 people marched from the Church Street sanctuary to join those in the Civic Center. Wearing T-shirts that said "Separate is not Equal," they walked behind a rainbow-colored banner that said "Faith Demands Justice."

"We plan to occupy Van Ness at Grove until we get arrested," said Kip Williams, one of the organizers of the protest.

The Reverend Dawn Roginksi, the lesbian pastor at St. Francis, said she planned to join the demonstration in order to "stand on the side of equality and the side of love."

"We can not stand by and let well-funded conservative voices be the only voices hear din California," said Roginski.

Faith leader Lawrence Ellis, who identifies as a Native American two-spirit, took part last year in the Shades of Equality Coalition that addressed communities of color about the need for marriage equality and pressed the No on 8 campaign to engage minorities. During the service, he told the more than 100 people in the audience that the passage of Prop 8 was a "desecration of democracy."

"The passage of Prop 8 showed humanity at its worse," said Ellis.

The vote laid bare not only how a majority of voters could take away rights from a minority group, said Ellis, but also the racism and transphobia within the LGBT community, noting of how African Americans were initially blamed for Prop 8's passage and how transgender people are still excluded by some gay, lesbian, and bisexual people.

He said the LGBT community now has a "golden opportunity" to not only fight for its rights but deal with the issues within the community.

The fight to win back marriage rights has already begun. Equality California, the statewide LGBT advocacy group, is already running television commercials to educate people about why marriage matters to LGBT families.

Within minutes of the court's ruling being announced, the progressive Courage Campaign announced that a 60-second TV ad illustrating the effect of Prop 8 and the Supreme Court ruling poses to same-sex households would air in English and Spanish on TV stations across the state in the next 72 hours.

"I am disappointed the court ruled to deny marriage equality to Californians," said Rick Jacobs, founder and chair of the group. "These are fundamental constitutional rights that cannot be abolished by a ballot initiative. While we were hoping the court would rule in favor of equality, we have been building the infrastructure to win marriage equality rights at the ballot box. Our members are ready to do the hard work needed to win."

Tonight a rally will begin at 5 p.m. at City Hall and a march will than set off at 6 p.m. for the MLK Memorial at Yerba Buena Gardens at 4th and Mission streets, next to the Metreon. Following the march will be speeches by community leaders from 7 to 8:30 p.m.

The court's opinion resolves the three cases filed against Prop 8: Strauss v. Horton, S168047, Tyler v. State of California, S168066, and City and County of San Francisco v. Horton, S168078. The opinion is available online at

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