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Mark Wilson, Editor 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.

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8 Responses to “It Wasn’t All Smiles”

  1. Kevin Van Dyke, Editor on November 8th, 2008 3:18 am

    This may be not be applicable to proposition 8 since it already passed, but I’ve heard that there is also talk about possibly trying to change California’s referendum system to require something more like a 2/3’s majority to amend the constitution. It seems ridiculous that 50.1% of voters can change something such as a constitution. There is a reason we live in a Republic. Direct demockracy is unpractical and leads to chaos! (I disagree with proposition 8, but my comments above are in reference to all propositions.)

    Also in reference to Proposition 8 specifically, do you think 2010 is too soon to have a counter “equality” ballot measure that basically overturns proposition 8? (I agree that prop 8 is law for now.) I suppose there might be more success having this up in a non-presidential year. Maybe the gay community in California will actually organize a bit sooner than two weeks before the election and actually at least try minority outreach next time around.

  2. Mark Wilson, Contributing Editor on November 10th, 2008 6:47 pm

    2010, nothing! The next election will be the June primaries. They’re probably going to try for then. And if not then, November 2009.

  3. MrSystem on November 10th, 2008 7:30 pm

    This propostition’s outcome have put the far left on display. They seem to be an angry mob who is intolerant of other’s beliefs. This is the second time the people of California have voted to keep marriage defined as between a ‘man and a woman’. This goes all the way back to the first book of the Bible. You already have civil union benefits, so stop trying to define marriage as something that it is not. Make up another name if you want, but leave ‘marriage’ alone! Like always, the left jumps up and down and screams bloody murder when they do not get their way- I call that INTOLERANCE…

  4. Mark Wilson, Contributing Editor on November 10th, 2008 7:53 pm

    Sadly (or not), the Bible has nothing to do with the administration of government in this country (cf. U.S. Const. Am. I: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof [...]” Also, cf. U.S. Const. Art. VI: “[...] but no religious test shall ever be required as a qualification to any office or public trust under the United States”).

    Regarding the issue of intolerance, here we have a case of a group *taking away* rights that another group *already had*. In its May ruling, the California Supreme Court granted the right of marriage to same-sex couples. Proposition 8 removed that right. In terms of this country, this is unprecedented: constitutions confer rights, they don’t take them away. This sets a dangerous precedent in which a majority, by virtue of its size, may take away the rights of a minority. This is precisely what Alexis de Tocqueville warned in Democracy in America: what he called “the tyranny of the majority.” It is a logical fallacy to assume that, because a group is large, it is necessary correct. De Tocqueville warns, “If the free institutions of America are destroyed, that event may be attributed to the omnipotence of the majority, which may at some future time urge the minorities to desperation and oblige them to have recourse to physical force.” Our Constitution, to summarize, consists of “majority rule with minority rights.” Sure, the majority gets its way, but it may never — ever! — do so at the expense of the rights of the minority. This is reinforced in Am. IV, § 1: “No state shall [...] deny to any person within its jurisdiction the equal protection of the laws.”

    Furthermore, domestic partnership statutes in California *do not* confer the same rights upon domestic partners as are conferred upon married partners. (For example, “domestic partners” cannot be of different sexes!)

    Lastly, it is the right, not the left, that gets upset whenever the idea of “marriage” is bandied about in a context other than that of a man and a woman. As we have seen before, the definition of marriage does change (and has changed) over time. Cf. Loving v. Virginia, in which the U.S. Supreme Court rendered unconstitutional a Virginia statute designed to restrict “marriage” to people of the same race. It is false to say the definition of marriage has always been “a man and a woman.” History shows us that it is not that simple, even if opponents of same-sex marriage would like people to believe that it is that simple.

    And while we’re at it, half of the problem here is that “marriage” is a two-pronged idea: the state marriage, in which two people receive a license and are authorized by the state to marry; and the religious marriage, in which two people go to their place of worship and … well, get married. If Prop. 8 had failed, it would have had no effect on the *religious* half of marriage. People who wished to look down on same-sex marriages as not really marriages would have been free to do so. But to take this whole marriage thing to its correct conclusion would be to eliminate state licensing of marriages and replace it instead with state *acknowledgment* of marriages. People get married, and the state files a piece of paper noting that the marriage happened (mostly for the purposes of probate).

    And in terms of people “not getting their way,” it was conservatives — not liberals — who put Prop. 8 on the ballot in an attempt to overrule the California Supreme Court, which correctly and lawfully held that the earlier Prop. 22 violated both the California and federal constitutions.

  5. tuco on November 11th, 2008 6:47 pm

    It is time to censure lawmakers who push forward legislation based on their religious beliefs. Remember how upset everyone was when JFK ran for the Presidency? Will he take orders from The Vatican? How far does the right want to take this? Will we have a Constitutional Amendment that forbids the teaching of evolution?

  6. Ema Nymton on November 12th, 2008 3:53 am

    Holy crap, Mr. System! You’re amazingly stupid! You realize that, right?

  7. Tommy on November 12th, 2008 3:46 pm

    I don’t understand why a legal challenge isn’t being mounted against Prop 8’s enactment based solely on the argument that Prop 8 infringes upon the religious rights of those churches who support and conduct gay marriage ceremonies.

    While it would fail because “marriage,” as far as the state is concerned, is not a religious institution, that very ruling would help set precedent and support future assertions that allowing state-sanctioned gay marriage would have no impact on religious beliefs or force religious institutions to adopt them.

    The idea is to take a loss in order to earn a win.

  8. Isabelle on November 12th, 2008 6:10 pm

    While the Mormon Church may deserve to lose its tax exempt status, pursuing that would, in my opinion, be a terrible strategic move for gay rights supporters to take. Most people have a fairly simplistic view of things, and whatever the potential legitimate arguments for stripping LDS of its tax exemption, the majority of voters will see it as an attack on freedom of religion. Which will of course play into the hands of the people who created Yes on 8 ads saying that gay marriage would jeopardize religious freedom. If you force people to choose between religious freedom and gay marriage rights, I don’t think you’ll like the outcome.

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