Same-Sex Marriage in California and Prop 8: A Brief History

January 17, 2010 at 11:00 pm in History, Law, Politics

So, are you mystified about the state of same-sex marriage in California? At first glance it looks easy. On one side, you’ve got your proponents of same-sex marriage: Advocacy groups like the ACLU; big corporations like Google; and Americans everywhere who think that other people’s romantic lives are none of their business. And on the other side you’ve got rich Mormons, Carrie Prejean, and people who think that marriage is a totally sacred institution that’s always been treated with the utmost respect throughout all of human history and nobody ever gets divorced and Ted Haggard was FRAMED dammit.

But look a little closer, and you’ll find that California has a weird and complex relationship with same-sex marriage, and that proponents of “opposite marriage,” as the eminent Ms. Prejean has termed it, have had quite a fight on their hands when it comes to preserving their way of life, which by the way is honorable and traditional and totally without any problems. Also whenever gay people get married God gives a kitten pancreatic cancer.

Sorry. My point is that the recent history of marriage in California is a bit of a labyrinth, and if you’re going to try to understand the case that began in court last week — Perry v. Schwarzenegger –  you’re going to have to learn a little history.

So here it is.

1977
The California State Assembly amends language in state law to ensure that marriage may only exist between a man and a woman. But ambiguity in the law allows same-sex marriages performed in other states to be recognized here.

November 2000
Caifornia voters pass Proposition 22, which prohibits the state from recognizing same-sex marriages.

February – March 2004
San Francisco Mayor Gavin Newsom orders that city and county workers revise marriage forms and begin allowing gay couples to marry, in direct contravention of Proposition 22. The next day, two conservative groups, the Proposition 22 Legal Defense and Education Fund, and the Campaign for California Families, file a court action to stop the marriages from being performed. By March, the California Supreme Court halts the weddings.

August 2004
The California Supreme Court rules that the marriages performed in February and March are void.

May 2008
A series of legal proceedings resulting from the conservative groups’ court actions results in the California Supreme Court case known as In re Marriage Cases. In the case, the court renders Proposition 22 invalid, holding that statutes limiting marriage to hetero couples violates state constitution. Same-sex couples begin marrying.

November 2008
Prop 8 passes, amending the state constitution and limiting marriage to men and women.

May 2009
In Strauss v.Horton, The California Supreme Court holds that Prop 8 was lawful but that marriages performed before it was passed — after In re Marriage Cases but before the constitutional amendment, are valid. A few days before this, the American Foundation for Equal Rights, a nonprofit advocacy group, files suit in federal court, challenging the validity of Prop 8 under the U.S. Constitution on behalf of two same-sex couples. Notably, the attorneys arguing the case are Ted Olsen and David Boies,  who argued opposite sides of Bush v. Gore. The case is known as Perry v. Schwarzenegger.

January 11-15, 2010
Perry v. Schwarzenegger begins. During its first week, several notable developments occur:

  • In a 5-4 decision, the Supreme Court bars U.S. District Judge Vaughan R. Walker, the judge hearing Perry, from broadcasting the trial on television. The majority opinion agrees with Prop 8 proponents that releasing video of the witnesses could subject them to potential harm.
  • Olsen presents an animus argument, asserting that animosity toward gays and lesbians drove anti-same-sex-marriage advocates to pursue Prop 8. The argument has precedent: In Romer v. Evans, a 1995 Supreme Court case, the Court ruled that a Colorado law, which prevented gays from legal protections, was based on animosity toward gays and therefore unconstitutional.
  • To prove animus, Olsen presents a letter written by Hak-Shing William Tam of the Traditional Family Coalition, a Prop 8 organizer. In the letter, Tam equated same-sex marriage with prostitution and “sex with children,” and asserted that legalizing same-sex marriage would result in California falling “into Satan’s hands.” Earlier in the month, Tam, a defender in the case, had asked Judge Walker to remove him from the case, fearing publicity that could endanger him and his family. Walker has yet to rule on the request.
  • Testimony was offered by Cambridge University professor Michael Lamb, whose research showed that same-sex couples are equally capable of raising children as heterosexual couples. Lawyers for the Prop 8 campaign referred to Lamb as a “committed liberal” whose testimony was ideologically tainted.
  • Also testifying was Helen Zia, who claimed that marrying her partner gave their relationship a legitimacy that couldn’t be matched by a domestic partnership.

Next week, San Diego mayor Jerry Sanders is expected to take the stand in defense of same-sex marriage. Sanders is noteworthy for having changed his stance on gay marriage — from “anti” to “pro” — after learning his daughter was a lesbian.

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