Proposition 8

Proposition 8 Eliminates Right of Same-Sex Couples to Marry Initiative Constitutional Amendment

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Note: The Background, Proposal, and Fiscal Effect sections are taken from the LWVCEF In Depth publication, based in part on the Legislative Analyst’s Office analysis included in the Secretary of State’s official Voter Information Guide.

BACKGROUND

In March 2000, California voters passed Proposition 22, an initiative statute, that specified that “only marriage between a man and a woman is valid or recognized in California.” In May 2008, the California Supreme Court held, in In re Marriage Cases (2008) 43 Cal.4th 757, that the statute enacted by Proposition 22 (and other state statutes that describe marriage as being between a man and a woman) violated the equal protection and inalienable rights provisions of the California Constitution (Article 1, Sections 7 and 1, respectively). In its discussion, the Court compared the laws prohibiting same-sex marriage with previously-overturned laws that had prohibited interracial marriage, and held that the right to marry is a basic, constitutionally protected civil right. The Court also found that, although domestic partnerships confer on the participants virtually all of the benefits, privileges, responsibilities and duties afforded to married couples, the different designations “must be viewed as potentially impinging upon the constitutional right of same-sex couples to marry.” As a result of the Court’s ruling, same-sex couples have been allowed to marry in California since the ruling went into effect in June 2008. (Note: the following background material was drawn from the following sources: In re Marriage Cases (2008) 43 Cal.4th 757; Kenji Yoshino, Yale Law School Professor, Can California’s Same-Sex Marriages Be Saved?, Los Angeles Times, June 30, 2008; and Secretary of State Domestic Partners Registry website.) Current California law authorizes registered domestic partnerships. Under the California Domestic Partners Act, same-sex couples (and opposite-sex couples where one partner is over age 62) are allowed to register with the state as domestic partners. Domestic partnerships confer on the participants virtually all of the benefits and responsibilities afforded to married couples. The Supreme Court decision did not invalidate or change any of the statutes relating to domestic partnerships, and Proposition 8 would have no effect on those statutes. If Proposition 8 passes, the question will arise as to whether it can be overturned by the courts on the ground that it is unconstitutional. A constitutional amendment approved by the voters can be ruled unconstitutional. A constitutional provision can be held unconstitutional if the courts find that it violates the U.S. Constitution. For example, in the 1960s, both the California Supreme Court and the U.S. Supreme Court invalidated Proposition 14, a constitutional amendment passed by the voters which would have overturned the Rumford Act’s fair-housing laws. The courts found that the amendment violated the equal protection clause of the U.S. Constitution. In the 1990s, on the same grounds, both the Colorado Supreme Court and the U.S. Supreme Court overturned a voter-passed amendment to the Colorado Constitution that would have prevented local governments from enforcing policies prohibiting discrimination on the basis of sexual orientation. If Proposition 8 passes, and is not overturned by the courts, the same-sex marriages that were entered into since the California Supreme Court ruling went into effect in June 2008 would become null and void, since they would violate the letter of the law that “only marriage between a man and a woman is valid or recognized in California.” In order for the marriages to remain valid, the courts would have to rule that applying this measure retroactively would violate provision(s) of the U.S. Constitution, such as the due-process clause or equal protection clause of the 14th Amendment, or the provision of Article 1 that prohibits ex post facto laws.

THE PROPOSAL

Proposition 8 would amend the California Constitution by adding new Section 7.5 to Article 1, to specify that only marriage between a man and a woman is valid or recognized in California (essentially writing the language of Proposition 22 into the state Constitution). As a result, same-sex couples would no longer be allowed to marry in California, and same-sex marriages entered into in other jurisdictions would not be recognized in California.

FISCAL EFFECT

The Legislative Analyst’s Office states that, because marriage between individuals of the same sex is currently valid in California, there would likely be an increase in spending on weddings by same-sex couples in California over the next few years. This would result in increased revenue, primarily sales tax revenue, to state and local governments By specifying that marriage between individuals of the same sex is not valid or recognized, this measure could result in revenue loss, mainly from sales taxes, to state and local governments. Over the next few years, this loss could potentially total in the several tens of millions of dollars. However, over the long run, this measure would likely have little fiscal impact on state and local governments.