Prop 8 Lawsuit Explanation For Non-Lawyers: An Unbiased-and-Simple-As-Possible Explanation of the Prop 8 Lawsuits for Non-Lawyers.
November 8, 2008 by Johnny California
Filed under Ballot Propositions
We here at Johnny California are getting a lot of questions about the basis for the Prop. 8 lawsuits. People are telling us that they don’t understand it. We’re here to help. We tried to break it down as simply and as straightforward as possible for you.
Some “Disclaimers”: We are No-On-8ers and have legal backgrounds. What follows is an attempt to simply explain the California Supreme Court decision in In Re: Marriage Cases and the theory behind the current Prop. 8 challenges. What follows is geared for non-lawyers, it’s an “explanation” not an “analysis.” To keep it as “informational” as possible, we don’t give our opinion as to the chances for this lawsuit’s success.
Also the Prop 8 lawsuits are comprised of three individual cases: Strauss v. Horton, Tyler v. Horton, and San Francisco v. Horton, we’ll refer to them by the lead case: Strauss v. Horton. If we refer to “Strauss” or “Strauss v. Horton” we’re talking about the Prop 8 lawsuit.
And who is this Horton character you ask? He runs the California Department of Health, the office that is ultimately responsible for issuing marriage licenses. In a case like this, ya gotta sue a state official, you can’t sue the state itself.
Cool? Cool. OK let’s go.
First Some Background
In the world of civil rights law, a “fundamental right” is a big ticket item. It’s a right that is specifically stated in or derived from the constitution. Examples of fundamental rights specifically stated in both the U.S. and California constitutions include freedom of speech, free exercise of religion, and freedom of association.
Examples of fundamental rights that the U.S. and State Supreme Courts derived from the constitution include the right to privacy and the right to get married.
Last May, the California Supreme Court declared that marriage between two consenting adults, regardless of gender, is a “fundamental right” and that 2000’s Proposition 22, which defined marriage as being between “one man and one woman,”deprived gays and lesbians of this “fundamental right.”
The California Supreme Court also declared gays and lesbians to be what’s known as a “suspect class.” In legal jargon, a “suspect class” is a group of people who have been traditionally discriminated against. At the federal level, a “suspect class” is always a racial or religious minority. At the federal level, gays and lesbians are not a suspect class, As far as we know, California is the only state to grant “suspect class” status to gays and lesbians. 
Once the California Court declared that gays and lesbians were a “suspect class” that had been deprived of the “fundamental right” of marriage, the Court told the California Attorney General’s Office that it better come up with a damn good reason why gays and lesbians were not only being discriminated against but also denied the fundamental right of marriage. The AG’s Office didn’t come up with a reason that satisfied the Court, and the one man/one woman definition of marriage was found to be in violation of the California constitution.
Once the California Supreme Court declared the marriage definition unconstitutional, same-sex marriage opposition groups decided to undo the Court’s decision by amending the California constitution by a simple majority of a popular vote, also known as a “ballot proposition.” That ballot proposition was Prop. 8.
OK…Ready to move on to the lawsuit?
The Prop. 8 Lawsuits (Strauss v. Horton)
The No-On-8ers in Strauss v. Horton claim that since the California Supreme Court already declared that gays and lesbians were a “suspect class” who were being discriminated against and denied a “fundamental right”, that Prop. 8 goes beyond amending the California constitution; they claim that Prop. 8 completely violates the “constitution’s core commitment to equality for everyone be eliminating a fundamental right form just one group – lesbian and gay Californians.” In other words, the suits claim that since marriage is a fundamental right in the California constitution, Prop. 8 can’t come along and take away that right from one group.
Strauss’s second claim is that not only does Prop. 8 interfere with the role of the constitution, it interferes with the job of the Supreme Court to protect “suspect classes” from discrimination and deprivation of their “fundamental rights.” In other words, Prop. 8 isn’t changing a law or amending the constitution, it’s telling the California Supreme Court how to interpret the constitution. It was decided back in the olden days that the Supreme Court is the only entity that can interpret the constitution into law and nobody can tell the Court how to interpret it. Or more simply, it’s illegal to pass a law that tells the Supreme Court how to do it’s job.
Finally, the lawsuit makes what’s known as a “procedural argument.” The suit claims that ballot propositions are only allowed to “amend” the constitution and that Prop. 8 actually “revises” the California constitution. What’s the difference? There’s no hard and fast definition, but the suit claims that since Prop. 8 goes so far in altering the California constitution and the role of the Supreme Court, that it actually changes the very structure of the state government, which means it’s a “revision.”
They say that a ballot prop cannot wield that much power and that a same-sex marriage ban needed to first through go through the state legislature.
Over at PolitickerCA, one of the lawyers on the case who sums up the whole argument this way:
If the voters approved an initiative that took the right to free speech away from women, but not from men, everyone would agree that such a measure conflicts with the basic ideals of equality enshrined in our constitution. Proposition 8 suffers from the same flaw – it removes a protected constitutional right – here, the right to marry – not from all Californians, but just from one group of us. That’s too big a change in the principles of our constitution to be made just by a bare majority of voters.
The End.
Feel free to comment with questions and will try to clarify anything that wasn’t clear.
And to all you other lawyer types out there, remember that we’re not “analyzing” the lawsuit, we’re explaining it to people who had the good sense to stay away from law school.
Thanks for the explanation… I’ve done some quick searches, but have yet to find a detailed opinion of what the chances are for getting Prop 8 repealed through the courts. Do you have any thoughts on this, or can you point me to a site/article discussing the lawsuit’s chances of winning?
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How and why did the Colorado Supreme court & the US Supreme Court overturn Colorado’s Amendment 2 (Romer v Evans). Isn’t this the same type of proposition that strips one group of citizens equal rights under the constitution?
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Johnny California Reply:
November 12th, 2008 at 11:33 pm
Chesley,
Thanks for this great question. We were inspired to post it and answer it right here: http://johnnycalifornia.com/?p=1625
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Re: errors above
Under heading “The Prop. 8 Lawsuits”
2nd paragraph, 1st sentence:
Reads: “The lawsuit’s second claim is that not only does the LAWSUIT interfere. . . .”
Should read: “The lawsuit’s second claim is that not only does PROP. 8 interfere. . . .”
2nd paragraph, 2nd sentence:
Reads: “In other words, . . . telling the California Supreme Court interpret the constitution. (sic)”
Should read: “”In other words, . . . telling the California Supreme Court HOW TO interpret the constitution.”
Great website. Keep up the good work.
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Johnny California Reply:
November 12th, 2008 at 1:23 pm
Thank you SilverFox!! We appreciate you catching the typos and your kind words. Much obliged.
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Isn’t the SCoCal on shakey ground by awarding ’suspect class’ status based on personal behavior? If this goes to SCotUS won’t this status become a pivotal issue?
How is a definition of marriage a denial of a fundamental right if no one is denied the right to marry someone of the opposite sex?
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Johnny California Reply:
November 19th, 2008 at 3:18 am
If the same-sex marriage cases go to the U.S. Supreme Court, the issue of whether or not gays and lesbians are a “suspect class” will likely be an issue that’s raised — how it’s raised, who raises it, and in what context remains to be seen (it’ll depend on the facts of the case and what happens in the appellate courts). The holding of the California Supreme Court did not address “behavior”, they concluded that gays and lesbians are a suspect class because they are “commonly subject to biased treatment that has no basis upon their ability to be a contributing member of society.”
As to whether or not the California Court is on shaky ground, remember that the Supreme Court can only rule whether gays and lesbians are a suspect class under federal law. If California wants to rule that gays and lesbians are a suspect class under state law we cannot see how the Supreme Court can prevent that from happening (well, they could if they wanted to, but it would be a major federalism problem and not an area we see the Supreme Court wading into).
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William Kernan Reply:
November 19th, 2008 at 3:31 am
Thank You
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Gays and lesbians are NOT contributing members of society in regards to marriage because they cannot bear naturally conceived children. Many people have a moral revulsion towards gay marriage and THEY have rights to the traditional definitions of marriage as the majority has so deemed. Gays and lesbians are deviants from sexual norms and society has an interest in protecting children from subversive influences of these deviants. A man and woman raising a child is NOT the same as two woman or two men raising one. A child deserves to know the balanced experience and NOT the deviant experience.
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chris Reply:
January 3rd, 2009 at 3:08 am
ali you are really pushing your opinion into fact. first off try to not use deviant, because the word implys that someone is doing something by WILL, which of course almost every scientist/geneticist will disagree with you about the choice arguement. Second tradition does not override equality in this country my friend. Just because the tradition of SOME is religious, regaurding marraige, doesnt mean the government should step in and ban a class of citizens from getting married. You dont have the right to NOT be offended in this country, but you do have the right to do what is morally proper FOR YOU. You can teach you children you ideas of life and sexuality, but so should gays and lesbians. As John Stewart said, “I think a gay couple with a loving and financially secure background, beats the hell out of Britney and K Fed.” Your wording is terrible as you dont know whether or not homosexuality is a genetic “variable” (much more suitable and less offensive word) or a nurtured trait. And gays are very large contributers to our society and marriage. Love is the key to marriage my friend, not the ability to have children. Remember that many hetero couples are unable to concieve children. Should their marraiges be revoked too? Gays are not trying to corrupt minds of our youth and recruit like you so idiotically stated. I really can see hate in your words and it is sick. And just so you know the only people who have a “moral revulsion” to gays are religious nuts who like to seep the bible into law. Christians and other relgious citizens should keep their moral definitions and crazy ideas of how to control society to their private meetings and let the government do its best to decide what is equal and fair.
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William Kernan Reply:
January 3rd, 2009 at 10:58 pm
“idiotically”, “religious nuts”, “crazy ideas”???
Who”s hateful and sick?
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chris Reply:
January 7th, 2009 at 3:52 am
you i clearly defined that for you in the paragraph
Markw Reply:
January 10th, 2009 at 8:54 pm
Ali, your issues with gays being parents and raising children really has nothing to do with Prop 8 or legalizing gay marriage. Gays already have the right and are parents in California under domestic partership laws, and Prop 8 wouldn’t have changed that one way or the other. Move on to the real reason your against gays being married: bigotry and hate.
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Ali — that sounds like a personal opinion.
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Thank you for clearing up the legal proceedings — the article is interesting as well as informative.
I am also a no-on-8er (surely someone can think of a better handle) but in talking to various 8′ers I find myself super confused on the impact to churches.
If I understand correctly (always a shaky assumption), Prop 8 does not alter Domestic Partnership rights which confer all of the same civic and financial benefits of traditional marriage on same-sex couples. Yes-on-8ers therefore deny that Prop 8 infringes on a fundamental right. Gays can live together in state-recognized committed life-long exclusive relationships. Prop 8, they claim, is meant to define *sacramental* marriage — a union blessed by a church — and to protect a church’s religious freedom to deny what they consider sinful behavior.
(insert personal opinion) I consider this argument self-contradictory — under these auspices, prop 8 blurs the line between church and state, a line that is the first and best safeguard of religious freedom.
Still, can someone explain to me what the real deal is? Is there a substantive non-religious difference between “marriage” and “domestic partnership?” If not, what is the basis for the CA supreme court’s claim that gays are denied a fundamental right?
If prop 8 is revoked, will churches have the right to refuse to marry gay couples? If they refuse, will they lose their tax status, as many are claiming? Can the state police people’s theology?
If prop 8 is not revoked, will left-wing churches have the right to marry gay couples? What will happen if they continue to do so? What will happen to the marriages that they’ve already performed?
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William Kernan Reply:
January 3rd, 2009 at 10:47 pm
A point of correction if you’ll allow. The mention of safeguarding sacramental marriage was never part of the prop. Marriage from a Christian standpoint can be either supernatural or ’sacramental’ i.e. between a man & woman, both of whom are baptized, or simply natural i.e. when one or both parties is not baptized. So the amendment is far more inclusive than simply church marriages.
I concur with your understanding of civil unions and the rights they afford, and therefore the absence of depriving anyone of a fundamental right. I think its extremely important to remember that under Prop 8 everyone has exactly the same right to marry as anyone else, i.e, one other person of the opposite sex. No one is denied the fundamental right of association, they just can’t call whatever they want a marriage. What this is most about is that the tolerance which homosexuals already enjoy as evidenced by the possibility of civil unions, is not enough. They need to be accepted as a good and healthy lifestyle. Once acceptance is granted then it will need to be taught as good and healthy in the public schools, as witnessed in Mass. last year. After that any institution opposing the ‘good and healthy’ label will be denied benefits the same way the law denies benefits to institutions that are racists in their policy or practice. This is no joke. The implications for religious institutions are staggering, and while secularist may not want to admit it, California has grown quite dependent on the social, educational, and health services Churches provide.
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I’m not sure how Prop 8 supporters can suggest that churches will lose their tax status, as Catholic churches will not marry people of two different faiths. One must convert to Catholicism in order to marry the other. Or has this changed?
As for the equal status of civil unions and marriage, there are several areas that I know of where gay and lesbian couples have difficulties:
1: On a federal level, we are not able to marry our partner if they are an immigrant in order to give them legal status in this country. They are forced to marry someone of the opposite sex and pretend.
2: Tax benefits on a federal and state level
3: Hospital visitation. If a partner is critically injured and in the hospital, the other partner can be denied visitation. Family only.
4: Property ownership and new taxes. If a spouse died and the survivor wishes to stay in the home, they are assessed a new tax rate because they are inheriting the property.
Please someone correct me if I am wrong on these. I’m sure other people could contribute to the list as well.
There are a lot of deceptions that the Yes on 8 people are spreading. We are not of equal status under the law.
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William Kernan Reply:
January 4th, 2009 at 10:17 pm
Catholic Church has never required someone to convert prior to marrying a Catholic. They will be either a sacramental marriage in the case of a Catholic and a baptized non-Catholic, or a natural bond when the non-Catholic is not baptized.
I’m quite certain you are mistaken on difficulties 3 & 4
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Chesley Reply:
January 4th, 2009 at 11:04 pm
William, I’ve had several couples tell me of difficulties with #3. If you end up at a hospital with a homophobic staff, you are not getting in to see your spouse. Visitation rights should not be at the whim of someone else. We are talking about RIGHTS.
As for #4, and as far as I am aware, that is in the process of being solved and is still a problem.
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William Kernan Reply:
January 6th, 2009 at 11:49 pm
So is it really the provisions of the law regarding civil unions or the enforcement of those provisions? Also, could it be that enforcement is inconsistent precisely because civil unions are a recent invention and not, as you suggest, solely because people are “homophobic”. Generosity of opinion or ‘giving one the benefit of the doubt’ is a far more joyful trait, than assuming the worse about people.
Thank you all for clearing this up for me. William, I’m sorry, I did not mean to suggest that the *wording* of Prop 8 applied only to sacramental marriages. I meant that if protection of sacramental marriage (and thus religious freedom) is the impetus behind the movement, then I feel the means are counter-productive.
Chelsey, the Catholic Church will bless inter-denominational marriages under certain conditions. However, under canon law the church will refuse to marry, for example, couples that have been co-habitating, or who have had an abortion. The church considers these behaviors to be immoral and contrary to the nature of Christian marriage; such couples must confess and repent before a wedding is permitted. It is church’s right — indeed some would say that it is its purpose — to impose these strictures. Put crudely: our club, our rules.
However, no one has passed a law stating that cohabiting couples are a persecuted minority, or that refusing them to marry them violates their civil rights. This is what the CA supreme court has done in the case of homosexuals (I think)
As a Catholic, even as a fairly left-wing Catholic, this worries me. If the state were to try to force priests to marry gay couples, it would be disastrous for us. If priests refused to do so as a matter of conscience, they would be liable to institution-destroying lawsuits. If they comply, it would mean a split from Rome. We’re talking old-school schism, interdict, excommunication.
Once again, this is personal opinion, but I feel that homosexual and heterosexual couples should be _completely_ equal in the eyes of the law. All of the inequities Chelsea mentioned (thank you — I knew there must be some but did not know what they were) should not not exist. People do, I believe, have a right to marry whom they like.
They do not, however, have a fundamental universal human right to a CATHOLIC marriage. Or a Baptist or Presbyterian marriage, for that matter.
Prop 8 *creates* an inequity under the law, even if — especially if — it’s a purely semantic one. I believe it must be undone, and almost certainly will be undone eventually. But I’m very nervous of what will come of the affair.
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gah — Chesley, I’m sorry to have misspelled your name. I was not reading carefully enough.
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Hoopla. I wanted to share a story with you. Over Christmas dinner with my cousin we discussed Proposition 8. My cousin has had 3 failed marriages, but has several children and they all live very happily in their home. She is an inspiration. She told me how she knew nothing of Prop 8 until one of the residents of her city was killed in the Metro train crash that happened last fall. The woman was a lesbian LAPD officer. Her parter will not receive any of her pension. If her other 1/2 was of the opposite sex and they were married, they would. She also told me that her partner was going to lose their home.
To be honest, I think Proposition 8 sent out a clear message to the gay youth of today. “You are not equal.” I think perhaps many people voted yes on 8, because deep in their psychi they are so unhappy in their own lives, they wanted to knock someone down to feel better about themselves.
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hoopla Reply:
January 6th, 2009 at 12:44 am
My heart honestly goes out to the LAPD officer and to her partner. But I’m *astonished* that they were licensed by the state of CA as domestic partners and still denied these basic benefits. Under state law, domestic partners may not be denied hospital visitation rights, and they are entitled to the same survivor benefits and property/inheritance rights as married people. At least, that is what my rather limited research says. What am I missing?
All the same, I completely agree that Proposition 8 is a poor law. If Prop 8 (and its 2000 equivalent) had not been put into law, gay couples would be able to marry as they liked, and churches could have decided on their own whether or not they performed the ceremony.
I just do not like the situation, as it stands. I feel that the state is being forced to decide sexual freedom and freedom of religion, neither of which should be sacrificed.
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feels like the religious are deciding for all of us what freedoms should be allotted to who, and who and what actions are “deviant”
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hoopla Reply:
January 7th, 2009 at 11:40 pm
That is precisely why Prop 8 is bad law — the churches have a right to decide *for themselves* and for their own congregations what is acceptable behavior. They have no right to decide for the state.
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You’ve got it turned around. The point is that whatever homosexual couples enjoy is not a marriage as the natural law has always understood marriage. Sure you can see the difference between a relationship that is ordered toward the procreation and rearing of children, and one that is intrinsically sterile. As you say “churches have the right to decide for their own members what is acceptable behavior”. This is precisely why we can not have the state via the public school system, teaching our children that this is an acceptable lifestyle option, which is precisely what happened in Massachusettes
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all that you have said basically sums up our point. you, one of the religious, feels as though you have some valid feeling that you are protecting children with this law. the point we make is that you are in fact hurting children. Every study conducted on sexuality in humans has pretty much concluded in sexuality being either determined by genetics and enviromental factors or by mere genetics. So children who are gay, not by “choice”, not to sin; but because they were born that way, now must suffer and continue to live in a world where even the law views them as “deviant”. Youre view comes from your religion and that is it. It has no scientific value to it whatsoever. 18000 gay couples were married in CA, and my mother who has worked in a CA K-5 public school has never had or ever seen or heard of a curiculum teaching anything about marriage period. What happened in MA is not a proper representation of the gay community or the gay rights agenda rather a single person mistreating the laws and children. and just so you know words have multiple definitions and their definitions can change and expand all the time. much like the word marraige, which for thousands of year has changed dramatically. and if you look up the definition of marriage in the dictionary, yes you will find defs that only include between a man and a woman, but there are also others that dont confine the term to just that group of people. its really your view of gay people, and the way that you view them as either sinners, disrespecful, terrible people, sickening, or any ill concieved thought that blinds you to their humanity. Its not hard to see that these are people that dont wish to take anyones rights away, but simply want to enjoy the same rights on the same level as everyone else. no one should have to explain what a civil union is to a bank teller when opening a bank account or a insurance policy. you may feel that its “your word” (marriage that is) but its not. it is just simply a word, that dependent upon circumstances means different things. You are simply fighting over symantics of a word that has already seen dramatic change over the past 100 years.
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William Kernan Reply:
January 9th, 2009 at 10:35 pm
Words do have meaning Chris. And therefore they have consequences. Only a relativist believes otherwise, and as one of the greatest minds in the last 100 yrs has concluded relativism has its own tyranny for us to combat. You are assigning an enormous amount of feelings to someone who has expressed none: “you feel as though you have some valid feeling”. Even if you could by some clairvoyance know my feelings, its not about feelings, its about natural law, civil law, and the facts as they have come to pass in MA and San Francisco: children are being exposed to a lifestyle that their parents regard as unacceptable, whether your mother is aware of it or not.
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Jasoneye Reply:
January 10th, 2009 at 1:31 am
Will…. I have read a few of your posts. I keep seeing this reference towards ‘natural’in them. I hate to tell you but about 10% of humanity is and always has been naturally gay. Children are exposed to gay images all the time, like when I walk down the street holding hands with my boy friend. What would you tell your wide eye’d innocent children? That I’m evil? Disgusting? Deviant? To be voted down? What would you tell my wide eye’d innocent child? Because I tell mine that some people don’t understand how the world really is and they try to make it into something else. Kinda like they want to live in a fairy tale…. a 2500 year old one.Words do have meaning and yours are not based in reality, just in your religion.
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SilverFox Reply:
January 29th, 2009 at 10:03 am
William–
Interesting that you view being gay as a “lifestyle.” “Lifestyle” implies that being gay results from choosing to be gay. Do you have any evidence to support your implication, or just supposition or moral values? If so, I’d be glad to consider the evidence, as long as it’s not based on religious belief and not the trite old saw that “some people successfully resist homosexual urges,” which is not evidence as to why those people have homosexual urges in the first place, only that they refuse to acknowledge to themselves and others that they are either homosexual or bi-sexual.
Do you seriously believe that homosexuals deliberately choose a “lifestyle” that they know will produce revulsion in many straight people and will result in discrimination by those straight people against them? Most people crave approval and acceptance. So why would homosexuals deliberately choose a “lifestyle” known to produce exactly the opposite result? Doesn’t make sense to me. What makes sense to me is that homosexuals don’t choose to be homosexuals but rather don’t have any choice about being attracted to members of the same sex instead of the opposite sex. I didn’t make a choice to be straight; as a male, I always was attracted to females. But I’m glad of that, because it’s hard enough coping with life sometimes without having to deal with all the additional stress and grief that being gay would produce.
I believe in the Golden Rule. If you do too, try imagining yourself in the “shoes” of a gay person. (I apologize if this seems patronizing.) Imagine how you would feel about being treated the way straight people treat homosexuals. The power to imaginatively experience another’s feelings is, of course, empathy. Can you honestly say you can empathize with people who are different from you, including minorities, which of course includes homosexuals? Empathy is different from approval–you don’t have to approve to understand. But if you can truly understand, you may not feel compelled to act upon your disapproval; you may be able to live and let live.
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Chesley Reply:
February 1st, 2009 at 3:06 pm
SilverFox… I think you have said it in words that are truly what this is all about. I tend to get passionate and angry and flare up in tears over the whole subject. But I am sure that is true for anyone who has to defend their own honor.
Great words, and thank you.
William, I find it very interesting how the Christian right have brought children into this whole mix. This isn’t about children. This is about consenting, loving adults sharing their lives together.
But if you want to bring children into this mix, why don’t we talk about Matthew Shepard and how he was murdered for being gay? http://en.wikipedia.org/wiki/Matthew_Shepard
Whether you know it or not, by creating propositions (Prop
or Amendments (Colorado Amendment 2) that put a group of people into a lower rights class, you say to children that these people are not worthy of living. Through your actions you are saying that homosexuals are a lower life form and should be squashed like insects. Isn’t that what those boys did to Matthew Shepard?
What have these people done to you? Why does your kind preach love and compassion but not show by example?
You will believe what you will believe and your kind will continue to use puppies and children and everything you can to distort the truth and manipulate the ignorant populace into getting your way.
And as for a lifestyle… this is not a lifestyle. People are born homosexual. PERIOD. Just as they are born Black, Mexican, Chinese, etc.
Do you seriously think I would choose to live my 70+ years on this planet dealing with “Christians” attacking mr from every angle? Get your foot off my throat!
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Thanks for writing this! I figured out many important things that I couldn’t find anywhere else (like who this Horton figure was). Keep up the great work!
(btw, California’s Supreme Court website says that Tyler sued California, the state, not Horton.
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