History and Perspective on Proposition 8

There is a lot of discussion and commentary about California Proposition 8 in my world of late, with the vast majority of it coming from outside the state, and nearly all of it in opposition to the legislation. In the interest of putting some moderation into this decidedly liberal commentary, I did a little bit of digging to understand both sides of the argument. Here is what I’ve discovered:

In 1977, the California legislature defined marriage to be “...a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary.” This definition made explicit the traditional and commonly held view in the state that marriage is a legally recognized union of one man and one woman, and dismissed as specious an alternative view of marriage, with roots in the civil rights movement and the political activism of the 1960s, which took the position that marriage is a body of rights which should be extended, as a matter of equality, to couples who do not fit the one man/one woman definition.

California established a domestic partnership registry in 1999, allowing registered domestic partners to receive hospital visitation privileges equal to those of spouses and other immediate family members, and providing health benefits to domestic partners of state employees. Despite recognizing domestic partnership, however, California voters affirmed the traditional view of the definition of marriage in the year 2000 when they passed by a solid margin Proposition 22, an initiative statute which stated, "Only marriage between a man and a woman is valid or recognized in California.".

California's domestic partnership system was strengthened in 2003 with the passage of the Domestic Partners Rights and Responsibilities Act, which extended to registered domestic partners practically all of the civil rights and responsibilities granted to married couples, though both domestic partnership laws were vigorously opposed as blatant attempts to lead the state toward the legalization of gay marriage. In 2004, San Francisco Mayor Gavin Newsom pushed back on the issue, proclaiming that same-sex marriage would be permitted in his city, and instructed officials to modify marriage license forms to make them gender neutral. The California Supreme Court put a stop to the practice, ruling that San Francisco could not act outside the law by refusing to enforce the marriage provisions of state law.

Since that time, a plethora of legislation has been introduced. The most notable of the lot have been Assembly Bill 19 and 849 (2005). The latter was approved by the legislature, but Governor Schwarzenegger vetoed the bill, stating that Proposition 22had already been approved by the voters, and further commented that the issue of same-sex marriage, if divisive, should be settled by the courts or another vote by the people, not by legislation. The governor reiterated these views in his veto of Assembly Bill 43 (2007). First District Court of Appeal, in its review of six of the San Francisco same-sex marriage cases from 2004, stated in essence that they wanted no part in the discussion, emphasizing that, "…change must come from democratic processes, however, not by judicial fiat."

The Supreme Court of the State of California, however, did not hold to this view. In a 4-3 decision, the court struck down existing statutes limiting marriage to opposite-sex couples, overturning both the one-man, one-woman marriage law which the California legislature had passed in 1977 and Proposition 22. In an effort to override this ruling by amending the state constitution to state explicitly that, “[o]nly marriage between a man and a woman is valid or recognized in California,” proponents of Proposition 8 collected over 1.1 million signatures and fought off several legal challenges to ensure the question was included on the November ballot.

Proposition 8 is at its heart a simple initiative, but it is integrally tied to one’s view of marriage and its role in society. Those who see same-sex marriage as a civil rights issue take the view that its legalization is an extension of an inevitable process to provide rights to disadvantaged groups. Proposition 8, though simply a clarification of the definition of marriage, is said to imply that, by creating a marked difference between marriage and domestic partnership, same-sex couples would be treated unfairly. Those who hold to the traditional definition of marriage see the issue as deeply embedded in moral and religious beliefs, and resent the usurpation of the institution and its unique character by a minority of the state’s populace, however vocal they may be.

I tried to be centrist in writing this post because I appreciate both sides of this issue. On the one hand, I very much value equality. I see no reason why anyone who chooses to take on the responsibilities of joint union (whatever it is called) should not have every right and privilege afforded such a responsibility. However, I very much respect the view of marriage as a particular kind of union, one with longstanding religious and common law associations which give it an important feeling of reverence and propriety. I appreciate how it is threatening, but also unfair, to those who undertook marriage based on a perfectly valid set of cultural assumptions to have those assumptions overruled and, with them, the exclusive and distinct nature of their oaths.

My own thoughts on the definition of marriage, however, are supplanted by two greater concerns. The first is that, if marriage--or any form of civil union--is to be have real value, it must retain a sense of sanctity that comes from having a greater purpose. I worry that, in all this discussion about the meaning of marriage for individuals, that we have not yet begun to explore the degree to which such institutions have lost significance in a society clearly in need of some review of its greater moral fiber.

The second is that Proposition 8 is a California initiative and, although the discussion of same-sex marriage is taking place nationally, no one but the voters of the state of California gets to have a say about how they choose to define the institution of marriage for their own use. We are a nation of states, and it is important that we respect that California is not Massachusetts or Florida or anyplace else. They have a right to choose their own way.

You may now commence the roasting.