United States: Prop 8 looks set to stay


The legal battle for gay marriage rights in California may have suffered another setback. The California Supreme Court looks unlikely to overturn the state's anti-same-sex marriage legislation, Proposition 8, following a session on March 5 regarding the legality of the amendment.

Although the court has 90 days to reveal its ruling, judges indicated that the court is likely to retain Proposition 8, according to the March 6 Los Angeles Times.

However, the estimated 18,000 same-sex marriages that occurred before the adoption of Proposition 8 are likely to remain valid.

The hearing was preceded by dozens of candle-lit vigils across California on March 4 in favour of repealing Proposition 8.

A gay rights demonstration of thousands was organised outside the court session in San Francisco on March 5, according to the March 6 Washington Post.

If the court decides to legalise marriage between two men or two women, churches may still refuse to perform or acknowledge such marriages.

However, all married couples would receive the same legal recognition and rights.

Supporters of same-sex marriage rights point out that marriage equality does not infringe on any religious rights or definitions of marriage.

Gay marriage rights attorneys also argued that, given sexual orientation has the same protection as race and gender in the constitution, Proposition 8 is unconstitutional in its discrimination against same-sex couples' right to marry.

Winter of love

The court hearing is just the latest installment of a five-year-long legal battle in California over same-sex marriage rights.

In February 2004, San Francisco Mayor Gavin Newsom ordered county officials to grant the first marriage license to a same-sex couple, Del Martin and Phyllis Lyon. The decision contravened Californian state law and sparked a legal debacle that ignited the country with debate.

A further 4200 same-sex couples flooded to San Francisco's City Hall to marry before the state and anti-gay rights groups instigated legal action to stop marriage licenses being granted.

This three-month period became known as the "Winter of Love".

The legal ban on same-sex marriage was upheld until May 15 2008, when California's Supreme Court ruled that "we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest. Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional".


Conservative, homophobic forces counterattacked with the successful passing of Proposition 8 in a referendum in November, 2008. Proposition 8 states: "Only marriage between a man and a woman is valid or recognized in California."

Domestic partnerships, which according to Californian state law, grant most of "the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law" were left unaffected.

Though many in the queer community don't support the institution of marriage, marriage rights are seen as crucial in the battle for equality. Like the right to vote, the right to marry (and its legal consequences) is a basic democratic right, and the deprivation of this right on the basis of sexuality constitutes discrimination.

The court hearing also takes place amidst new revelations of institutional funding of the Proposition 8 campaign.

The California Fair Political Practices Commission (CFPPC) is investigating allegations that The Church of Jesus Christ of Latter-day Saints (LDS), based in the state of Utah, made donations to the campaign in a manner that deliberately obfuscated transperancy and traceability.

Californians Against Hate, which filed the initial complaint to the CFPPC, calculates that LDS followers contributed more than US$24 million in support of gay marriage bans in California and Arizona.