National NOW Times >> Spring 2009  >> Article

NOW Fights to Undo Prop 8, Restore Equal Marriage in California

By Aprille Russell, Development Planner

In May of 2008, the Supreme Court of California overturned the state's ban on same-sex marriages, permitting gay couples to obtain marriage licenses. Then, in a heartbreaking election night outcome, Californians narrowly approved Proposition 8, a measure restricting marriage to opposite-sex couples only. Its passage left in limbo the marriages of 9,000 couples who had married since the ban reversal took effect. This development prompted a wave of protests across the country and lawsuits, and on March 5, the California Supreme Court heard oral arguments regarding the ban and the fate of existing same-sex marriages.

Kenneth Starr -- best known for his work in the Whitewater and Lewinsky investigations during the Clinton administration -- represented "Protect Marriage," the group that led the campaign to put Proposition 8 on the ballot. Starr argued that "rights are ultimately defined by the people." Petitioners and friends of the court, however, argued that this line of reasoning is dangerous because the more-powerful majority could strip fundamental human rights from minority groups whenever popular opinion shifted. The National Center for Lesbian Rights, the ACLU and Lambda Legal filed a petition to invalidate Proposition 8.

In January 2009, the National Organization for Women, California NOW, and the Feminist Majority Foundation submitted a joint amicus curiae (friend of the court) brief. In our application we demonstrated that women are profoundly affected by Proposition 8. Women make up two-thirds of legally recognized same-sex couples, and comprise nearly the same proportion of same-sex marriages in Massachusetts and civil unions in Vermont.

In support of the petitioners seeking to invalidate Proposition 8, the NOW joint amicus brief argued that fundamental rights should not be stripped away by a slim majority: "If Proposition 8 is permitted to stand, the sad and undeniable result will be that fundamental and inalienable constitutional rights in this State will enjoy no more protection from majorities than ordinary statutory rights: they can be wholly eliminated on the whim of a simple majority."

Proposition 8 has far-reaching effects, NOW argued in the brief, noting the threat to equal protection rights. The law could also "deprive disfavored minorities of the fundamental security of equality under, and uniform operation of, California's laws."

Furthermore, as NOW's joint brief argued, Proposition 8 violates the separation of church and state: "If permitted, Proposition 8 would, in effect, promote and validate a particular religious view -- i.e., that only a man and a woman may marry."

The California Supreme Court has 90 days from the March 5 oral arguments to make its ruling. Early indicators suggest that the ban may be upheld, unfortunately, but that the marriages performed under the earlier decision will continue to exist -- but unrecognized by the state.

"Prop. 8 was a devastating setback, but it's also an opportunity to evaluate what we can do better when faced with the next initiative," says NOW President Kim Gandy. "In cities and states across the country, we've got to be vigilant and ready to act when anti-marriage, anti-adoption and other exclusionary initiatives are introduced. We have to educate the public, organize the grassroots, contact our representatives, and get supporters to the polls. Linking arms with those who already agree with us is crucial, but it is not enough. We must change the hearts and minds of people on the fence. If the court does not find in favor of equality for all, we pledge to continue our work, and identify every means to right this injustice."