The Passing of Proposition 8

Author: Melissa M.

On November 4, 2008, the State of California passed Proposition 8, which “Eliminates right of same-sex couples to marry.  Initiative Constitutional Amendment.   Changes the California Constitution to eliminate the right of same-sex couples to marry in California.  Provides that only marriage between a man and a woman is valid or recognized in California.”.  This Proposition changed a previous decision by the State Supreme Court which had allowed same-sex marriage, and “elections returns showed that the same-sex marriage ban initiative known as Proposition 8 won 52 percent of the vote.  

            The question becomes whether this is a violation of the Equal Protection Clause under the Fourteenth Amendment.  The Equal Protection Clause states, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;… nor deny to any person within its jurisdiction the equal protection of the laws.”  The Courts are going to have to determine whether they believe denying a certain group, in this case homosexual couples, the same right of marriage afforded to any heterosexual couple is a violation of equal protection under the law.  As Dan Savage stated, “… it is a responsibility of all of us not to be homophobic”.

            Is this the kind of question our government should be solving, or should the government not be getting involved in the personal lives of the citizens of the United States.  Would you want the government telling you who you were and were not allowed to marry based upon their own criteria?  What if the criteria were that any person with brown hair was not allowed to marry, would this not be a violation of one’s Constitutional Rights? 

Proposition 8 effects many lives and is a considerable struggle for the Gay Rights Activists.  Dan Savage had stated, “…ours is a civil rights movement, lower case C-R-M. It is a struggle. You get fired because you’re gay, you get fired because you’re black, you’re still out of a job. If your house gets burned down because you’re gay, burned down because you’re black, you’re still out of a house and maybe dead. Hate is hate. I’m not equating the experience with the history at all. But we are making a civil rights demand.  Is it right for our country to discriminate against a certain group because they are not the normative majority?  The passing of Proposition 8 is a violation of the Equal Protection Clause, and needs to be treated as such.



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3 responses to “The Passing of Proposition 8

  1. Diego Del Campo

    I think you meant “passage.”
    But anyhow, I think you’re right. Justice Sandra Day O’Connor was the only justice to see it that way when the Court overruled Bowers v. Hardwick, she said, “Laws such as economic or tax legislation that are scrutinized under rational basis review normally pass constitutional muster, since “the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes.” …We have consistently held, however, that some objectives, such as “a bare … desire to harm a politically unpopular group,” are not legitimate state interests. … When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.”
    Interstingly, she shielded herself from Republican attacks by including “marriage” as a state interest, by even I don’t think her argument would pass muster that marriage would be an exception simply because it is. Clearly her logic in that statement I quoted, could be applied to laws like Prop 8. Also, she was the only Justice to use the equal protection clause–the other 5 justices cited substantive due process.

  2. Tony Robinson

    Good post Melissa, and great comments Diego. I have commented at length on prop 8 and my sentiments about it in response to other recent posts on this blog (for example Ilasiea’s post), and those comment also apply here, so I won’t repeat them. But I do want to say that Dan Savage and Melissa are correct in equating the gay right struggle with civil rights struggles of the past. In all those past struggles people have claimed that the group arguing for civil rights was less than human, was deviant, was less capable, and that granting them civil rights would destroy society as we know it. These claims were made of blacks and women, for example. Thankfully, such primitive views are now completely off the table in terms of acceptable public discourse. Why, then, is it still okay to advance the same kinds of arguments against our gay brothers and sisters, mothers and fathers, sons and daughters? It is time to move past such primitive discrimination…

  3. Sarah Popp

    This was a big step backwards for civil rights in the United States. I don’t see what the benefit was to voting against this anyway. Why deny the right to get married to someone else just because they are involved in a same-sex relationship? How does it effect the rest of us if two men get married?If two people love each other and want to be married, then the government should not be in the way.

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