It Wasn’t All Smiles
by Mark Wilson, Editor
November 9, 2008
While the liberals among us were celebrating our victory over The Empire, there was a group of people for whom Tuesday night was bittersweet. By Wednesday morning, it had become clear that California’s Proposition 8 — which would amend the state constitution to ban same-sex marriage — had won a clear victory. 52% of voters in the most liberal state voted to ban same-sex marriage. Now the fight continues.
This is the first time a constitution has been amended to remove a right. As we have written before, California settled the issue of same-sex marriage in May when the state supreme court struck down a 2000 iniative statute, Proposition 22, which defined marriage as being between a man and a woman only. The California Supreme Court ruled that the statute was unconstitutional under both the California and federal constitutions. Thrity days from that ruling, until Wednesday morning, 18,000 same-sex couples were issed marriage licenses in California.
Prop. 8 supporters won through a combination of money and deceit. The money came mostly from the Church of Jesus Christ of Latter-Day Saints — the Mormons — who recognized that if they could get a constitutional amendment banning same-sex marriage passed in California, they could get it passed anywhere. They used all that money to espouse a bunch of lies, including, but not limited to:
- If Prop. 8 fails, churches that perform heterosexual weddings will be required to perform same-sex weddings, too
- If Prop. 8 fails, religiously-oriented adoption agencies won’t be able to discriminate against same-sex couples
- If Prop. 8 fails, schools will have to teach children that same-sex marriage is acceptable and ultimately condone the homosexual way of life
These are not true, of course. Prop. 8 opponents couldn’t successfully convince people that nothing would change if Prop. 8 failed, since the condition of marriage would be unchanged. Churches would still be free to engage in freedom of expressive association and choose not to hold same-sex weddings. Children might have had to learn about same-sex marriage, but only in as much as it was the law in California. Religously-affiliated adoption agencies are a complicated problem and cannot be distilled into a simple tagline. (Please read this article about Catholic Charities, Inc. to learn more about how religion pertains to adoption. Full disclosure: This is an article I wrote several years ago.)
Prop. 8’s opponents are trying as hard as they can to get the proposition overturned. Withdrawing a right, they argue, is so fundamentally against the nature and the spirit of California’s constitution (and, indeed, any constitution) that it amounts to a “revision” of the constitution, not an “amendment.” Words matter, here: an amendment can be passed by a voter referendum. A revision must be passed by the legislature. If Prop. 8’s opponents can get the state supreme court to agree with them, then the entire proposition would be invalidated and same-sex marriage would be restored.
But this tactic is a long-shot. Prop. 8’s opponents tried to get the proposition removed from the ballot back in June using the same logic, but the state supreme court dismissed the case without prejudice. Without prejudice is an important legal word — it means that the case can be re-filed in the future.
Prop. 8’s opponents are also starting a petition to get the Mormon church stripped of its nonprofit, tax-exempt status. The tax code requires that any organization that is tax-exempt must refrain from lobbying for legislation. The Mormon church, as an entity, not only implored its congregants to vote for Prop. 8, but it also provided financial support to the Prop. 8 campaign. If that doesn’t merit being stripped of tax-exempt status, then I can’t think of what does. It’s illegal for churches to take political positions on candidates or legislation — well, it’s illegal if the church has tax-exempt status. And the LDS Church does.
It will be a difficult legal battle, and the Prop. 8 opponents will probably lose. That won’t stop them from putting an initiative on the June ballot to have the new amendment repealed. And I hope they try. And I hope they succeed. Prop. 8’s victory has tainted the sweet victory of this election with an insidious return to the time when separate but equal was the law of the land.