California Proposition 8: Same Sex Marriage the

California Proposition 8: Same Sex Marriage The equal right to marry for same-sex couples in the United States has acquired growing public support over time, with a quantity of state-level laws passed and others presently up for debate. Proposition 8 was a ballot proposition and constitutional amendment that was passed in the November 2008 state elections in California. The measure added a new provision, Section 7.5 of the Declaration of Rights, to the California Constitution, which provides that only marriage between a man and a woman is legitimate or recognized in California.

By limiting the acknowledgment of marriage to opposite-sex couples, the proposition reversed the California Supreme Court's ruling of In re Marriage Cases that same-sex couples have a constitutional right to get married (Newman, 2010). The wording of Proposition 8 was exactly the same as Proposition 22, which had passed in 2000 and, as an ordinary statute, had been nullified by the State Supreme Court in 2008. California's State Constitution put Proposition 8 into instant effect the day after the election (Scotto, 2010).

Supporters of the constitutional amendment contended that solely heterosexual marriage was a necessary institution of society and that leaving the constitution untouched would result in public schools teaching the kids that gay marriage is okay, and that gays do not have the right to redefine marriage for everyone else.

Opponents contended that the freedom to marry is essential to society, that the California constitution should guarantee the same freedom and rights to everyone and that the proposition mandates one set of rules for gay and lesbian couples and another set for everyone else (Newman, 2010). The essence of their argument can be found in the equal protection clause (14th amendment) to the U.S. Constitution (Lind, 1995). In the state of California altering the Constitution by voter proposal necessitates a simple majority in order to be put into practice.

In practice, democracy is governed by its most commonly understood standard: majority rule. In essence, the side with the most votes wins, whether it is an election, a legislative bill or a shareholder motion in a corporation. In the end the majority vote is the deciding factor.

Thus, while it is apparent that democracy must guarantee the expression of the popular resolve through majority rule, it is similarly clear that it must guarantee that the majority will not misuse its power to breach the basic and inalienable rights of the minority. Democracy consequently requires minority rights equally as it does majority rule.

Undeniably, as democracy is seen today, the minority's rights must be protected no matter how singular or alienated that minority is from the majority; if not, the majority's rights lose their meaning (Majority Rule/Minority Rights: Essential Principles, n.d.). In the end Proposition 8 didn't pass a law about marriage or repeal one; it altered the state constitution to say that a right available to everyone else would not be accessible to same-sex couples. The difference between passing a law and altering the constitution is no technicality.

If majority rule is the first premise of the American system, the second premise is that the rights of a minority can't be taken away by majority rule. This was done in order to make sure that minority rights didn't rely on the restraint of the majority. Because of this the Bill of Rights was added to the federal constitution.

This was done in order to make sure that the assurances contained in the Bill of Rights were genuine that the people accepted the idea that while it was Congresses job to decide what laws to pass, it would be the Courts job to decide if those laws were reasonable and equal (Mormons and Knights and Understanding Proposition 8, 2009).

Proponents of same-sex marriage, resolute to prevail through judicial activism if need be, but also conscious of the question of legitimacy, sometimes appeal to the example of the United States' quest for racial equality. Their labors to establish same-sex marriage by way of litigation, they propose, can be understood as equivalent to the civil-rights movement of the 1950's and 1960's. After all, an activist Supreme Court is frequently thought to be one of the institutional heroes of the civil-rights movement and consequently of American history. In Brown v.

Board of Education, for instance, the Supreme Court delivered a significant victory for racial justice by striking down segregation in public education, even though that decision could be differentiated as lacking democratic legitimacy insofar as it upturned practices that take pleasure in majority approval in the states in which they take place, and lacking constitutional legality insofar as it depended on turning over an established understanding of the Constitution.

According to this dispute, a key victory of the civil-rights movement may have been deficient in certain kinds of procedural legitimacy, but it was nevertheless right, and is today commonly approved, because it is seen as a higher moral legitimacy coming from its justification of the essential principle of equality. Therefore the judicial victories that the same-sex marriage faction seeks would own the same kind of legitimacy as the Brown decision, which nobody would refute is one of the finest accomplishments of American jurisprudence (Holloway, 2009).

Routinely in this country marriage has traditionally been regarded as a relationship solely between a man and a woman, and a lot of the nation's multiple religions define marriage in exactly those terms. But while the Supreme Court has previously measured marriage in this context, the fundamental rights and liberties that marriage represents are not in any way restricted to heterosexuals. Marriage is a civil bond in this nation as well as, in some cases, a religious atonement.

It is a relationship acknowledged by governments as providing a privileged and respected status, permitted to the state's support and benefits. The California Supreme Court describes marriage as a union completely approved and favored by the community. Where the state has accorded representative sanction to a relationship and provided special benefits to those who enter into that relationship, our courts have insisted that withholding that status necessitates powerful justifications and may not be capriciously denied (Olson, 2010).

So what then are the justifications for California's decision in Proposition 8 to withdraw access to the institution of marriage for some of its citizens on the basis of their sexual orientation? The explanation mentioned most often is tradition. But just because something has always been done a certain way does not mean that it must always remain that way. If that were the case there would still be segregated schools and debtors' prisons.

Gays and lesbians have been around for a long time, forming a part of society, and they have lived as couples in neighborhoods and communities all over the country. For a long time, they have experienced discrimination and even maltreatment; but society is starting to become more open-minded, tolerant, and accepting. California and many other states have permitted gays and lesbians to form domestic partnerships or civil unions with most of the rights of married heterosexuals. Consequently, gays and lesbians are now allowed to live together in state-sanctioned relationships.

It thus seems inconsistent to cite tradition as a justification for withholding the status of marriage and as a result to continue to label those relationships as less worthy, less authorized or less lawful. When society refuses to accord this status to gays and lesbians, it discourages them from forming the same relationships that are encouraged for others. Society is also telling them, those who love them that as a whole that their relationships are less valuable, less lawful, less enduring, and less appreciated.

Society is demeaning their relationships and them as individuals (Olson, 2010). While same-sex couples can draw up legal documents to guard their families in a limited number of ways and rely on a small number of state laws that provide some rights, these fall far short of the all-inclusive protections and legal certainty that marriage provides.

Because the overpowering majority of marriage rights and responsibilities have been fashioned by way of statutes and regulations specifically for spouses, same-sex couples and their families are by definition left out, no matter what private contractual preparations or other workarounds they try to create.

In addition, while married couples characteristically can forecast how they will be treated by government founded on their married status, same sex couples and their families may be left at the mercy of a court to decide whether their relationship will be deemed adequately committed to merit formal recognition or whether they will as an alternative be seen as mere strangers in the eyes of the law.

This can be true even when a couple has gone to the trouble and cost of hiring an attorney to draw up legal documents substantiating their relationship (Same-Sex Marriage Myths Busted, n.d). Some states have fashioned statewide legal mechanisms short of marriage in an effort to provide some protection to same sex couples.

Domestic partnerships have been recognized by some public and private entities, like states, cities and private employers, but it is up to whichever entity that is founding the domestic partnership to decide whether it will have many, some, or none of the rights and responsibilities marriage provides to a couple. Many domestic partnerships, in fact, merely document the existence of the relationship and do not grant a single right to the couple (Same-Sex Marriage Myths Busted, n.d).

Private institutions like businesses are far more likely to distinguish marriage, civil unions or domestic partnerships for the purpose of providing benefits ranging from employee health insurance to bereavement leave. Since marriage has a long legal and policy history, employers, businesses and other private actors have a sense of how to treat a marriage that they don't have when dealing with civil unions and domestic partnerships.

For instance, while marriage is part of corporate benefits terminology, civil unions and domestic partnerships generally are not, or in other instances are given a separate and lower level of benefits (Same-Sex Marriage Myths Busted, n.d). Throughout history sseparate but equal has been a legal doctrine in United States Constitutional law that has warranted systems of segregation. Under this doctrine, services, facilities and public accommodations have been permitted to be separated by race, on the circumstance that the superiority of each group's public facilities was to remain equal.

This phrase has been recently used by supporters of same-sex marriage to argue for full marriage rights for same-sex couples, in lieu of civil unions, which is often the suggested alternative (Hirsch, 2004). A system of segregation has effects far beyond the instant segregation. When separate institutions are a tool to keep an alternative disempowered, they are categorically not equal, and never can be. There are two things that marriage provides.

One is an all-embracing set of rights and responsibilities that hearten social stability, protect spouses in hard circumstances such as death or illness, and provides for a methodical exit from the marriage should it end in divorce. The other is social recognition of a family's status (Hirsch, 2004). An issue that seems to be coming to the forefront is how civil unions fit into this mix. On one side of the debate some version of civil union or domestic partnership status is widely seen as an adequate compromise.

On the other side, gay rights advocates are emphasizing that the civil union/domestic partnership approach is fatally flawed. For one thing, civil union status would leave same-sex couples without the federal benefits that accompany marriage and would likely be of no value if the couples move to another state (Hirsch, 2004). A larger problem is that fact that the civil union response compromises the United States constitution, even if gay couples are given all the substantial rights and benefits of marriage in all fifty states.

The understandable analogy is the separate but equal doctrine that once governed civil rights in the racial context. In Plessy v. Ferguson, in 1896, the United States Supreme Court upheld a statute that segregated train passengers by race, claiming that the Fourteenth Amendment was designed to enforce political equality but not social equality. Plessy's doctrine of separate but equal has long since been abandoned, and is considered a stain on America's past. The two-tiered advance to marriage revives this discredited idea (Hirsch, 2004).

In August 2010, a federal judge struck down California's Proposition 8, which banned the State from issuing marriage licenses to same-sex couples. Prop 8 was in reality round two in California's battle over gay marriage. In November 2000, the voters of California adopted a similar initiative known as Proposition 22, or the California Defense of Marriage Act. Prop 8 was proposed to address that earlier decision striking down Prop 22 by amending the California Constitution itself.

A few months after the passage of Prop 8, a number of gay couples filed a lawsuit against Governor Schwarzenegger and various other state officials testing the law (Hirsch, 2004). The analysis that the federal judge used in order to strike down Proposition 8 was that California's choice to restrict marriage to opposite-sex couples violates the Fourteenth Amendment of the U.S. Constitution, and the U.S. Constitution trumps the California constitution. The judge held that gender no longer shapes a necessary part of marriage.

In other words, the basic right to marry applies to any two consenting adults, gay or straight. The judge then concluded that California has no lawful interest in denying marriage to gay couples and, consequently, Proposition 8 violates the Due Process Clause (Hirsch, 2004). The Fourteenth Amendment is one of three amendments adopted after the Civil War to make sure that America's newly-freed slaves would take pleasure in the full rights of citizenship. Over.