An Issue Bigger than California

In a summer of floods, $4-per-gallon gasoline, and an increasingly contentious presidential election, many Americans may have missed what is happening in California on another front. There is an initiative on California’s November ballot that reads, “Only marriage between a man and a woman is valid or recognized in California.” Titled Proposition 8, it would overturn a recent California State Supreme Court decision (In re: Marriage Cases) legalizing same sex marriages.

The story of Proposition 8 starts back in 2000 with the passage of Proposition 22, the California Defense of Marriage Act. Its purpose was to uphold the traditional definition of marriage in a state whose political power brokers openly admitted they wanted same-sex matrimony. In 1999, California became one of the first states to enact domestic partnership laws, which extended spousal rights to unmarried public employees.

Proposition 22 passed by 61 percent and, despite several legislative attempts to overturn it, was established law in California until this spring. That is when the state Supreme Court heard a case prompted by San Francisco Mayor Gavin Newsom’s issuing of same-sex marriage licenses in his city in 2004.

At the time, the state Supreme Court had ordered San Francisco “to enforce the existing marriage statutes and to refrain from issuing marriage licenses not authorized by such provisions.” Subsequently, the court ruled that San Francisco had acted unlawfully, but that it could challenge the constitutionality of existing law.

In 2006, the city of San Francisco filed a motion asking the court to declare that “all California statutory provisions limiting marriage to unions between a man and a woman violate the California Constitution.” This assertion became the heart of In re: Marriage Cases.

THE COURT OVERTURNS PROP. 22

On May 15, 2008, after lengthy deliberations, the state Supreme Court fi nally issued its 4-3 ruling in which the majority not only overturned Proposition 22 but stipulated that it was doing so, in part, because sexual orientation is a protected class like race and gender and that denying marriage to same-sex couples was pure discrimination.

Writing for the majority, Chief Justice Ronald George declared:

[T]he right to marry is not properly viewed simply as a benefit or privilege that a government may establish or abolish as it sees fit, but rather…the right constitutes a basic civil or human right of all people.

In dissent, Justice Marvin Baxter wrote:

Nothing in our [state] Constitution, express or implicit, compels the majority’s startling conclusion that the age-old understanding of marriage— an understanding recently confi rmed by an initiative law—is no longer valid. California statutes already recognize same-sex unions and grant them all the substantive legal rights this state can bestow. If there is to be a further sea change in the social and legal understanding of marriage itself, that evolution should occur by similar democratic means. The majority forecloses this ordinary democratic process, and, in doing so, oversteps its authority.

As if to express his own dissenting opinion, Pope Benedict XVI noted the day after the court’s ruling, “The union of love, based on matrimony between a man and a woman, which makes up the family, represents a good for all society that cannot be substituted by, confused with, or compared to other types of unions.”

In late 2007, the Supreme Court announced it would hear the challenge to Proposition 22. Nonetheless, traditional marriage proponents decided to take no chances, and they began the process to place a “protect marriage” amendment before voters in November. Thus, by the ruling’s release, opponents of same-sex marriage had already gathered enough signatures to place Proposition 8 on the ballot, and the measure qualified a short time later.

Opinion polls released to date show the race is close. A Los Angeles Times poll in the summer showed 54 percent support for Proposition 8, while a Field Poll shows 51 percent opposition. These numbers refl ect a growing national ambivalence about the matter.

“Our basic strategy is to communicate the value and importance of marriage to society, to children,” says Proposition 8 Campaign Manager Jeff Flint. “We will also communicate how our measure is a positive affi rmation of marriage and not a hateful campaign against homosexuals and the lifestyle they choose to live. They have a right to live that lifestyle. We’re not taking away that right, but similarly they don’t have a right to redefi ne marriage or have the courts do it for them.”

CATHOLICS AND PROP. 8

For its part, the California Catholic Conference, which represents the state’s bishops, has said it will provide resources to parishes to help ensure voter turnout.

“If that happens, we’re fairly confi – dent the initiative will prevail,” says Ned Dolejsi, executive director of the conference.

Much of the job of ensuring voter turnout will be done at the local level. A group called CatholicsforProtectMarriage.com is working to recruit leaders at the diocesan and county level, who in turn will be charged with fi nding 100,000 volunteers to contact and mobilize likely voters.

“Ultimately, this battle is up to pastors in parishes,” says Bishop Salvatore Cordileone, auxiliary bishop of San Diego, who many credit with getting Proposition 8 on the ballot. “That’s where most people meet the Church, so preaching about it, teaching about it, helping distribute election materials, that all needs to happen. In some places, parishes are even becoming voter registration centers. Of course, we have to keep prayer paramount. There will be other, grassroots efforts, and pastors should encourage these. But the job of promoting this will ultimately rest with the pastors in their parishes.”

(The question of support for the initiative at the parish or diocesan chancery level is an open question. No state in the United States has a greater number of self-identifi ed “gay-friendly” parishes— 44, according to the dissenting New Ways Ministry website. Several Californian dioceses have offices for or liaisons to homosexual ministries, and it is unclear to what extent any of these promote authentic Church teaching.)

In an effort to go directly to the faithful, the bishops have released a brief pastoral letter. The state Supreme Court’s ruling, they said, “diminishes the word ‘marriage’ to mean only a ‘partnership’—a purely adult contractual arrangement for individuals over the age of 18. Children—if there are any—are no longer a primary societal rationale for the institution.” They continued:

With all this in mind, we, as bishops, offer counsel to our Catholic people in California [that] same-sex unions are not the same as oppositesex unions. The marriage of a man and a woman embraces not only their sexual complementarity as designed by nature but includes their ability to procreate…. Any other pairing— while possibly offering security and companionship to the individuals involved—is not marriage. We must support traditional marriage as the source of our civilization, the foundation for a society…. Protecting the traditional understanding of marriage should not in any way disparage our brothers and sisters—even if they disagree with us.

They closed by exhorting all Catholics “to provide both the financial support and the volunteer efforts needed for the passage of Proposition 8.” Mormons and members of other faiths have done the same.

If Proposition 8 is to pass, it will require a lot of financial support in a state where political campaigns rise or fall on expensive media buys. As expected, the “No on Proposition 8” forces are raising more money than the Protect Marriage campaign. At the end of the fi rst reporting period, Equality for All–No on 8 had raised $1.9 million and had $1.4 million cash-on-hand. Conversely, Protect Marriage had raised $1.1 million over the previous two months, but had only $361,000 cash-on-hand.

However, those fi gures only refl ect the early part of the campaign. Since then utility giant Pacific Gas & Electric donated $250,000 to the effort to defeat Proposition 8, in part, reports the Los Angeles Times, because some believe “the amendment could hurt business if passed by giving the impression that California is not friendly to gay and lesbians.”

Supporters of traditional marriage also have their big spenders, including winemaker Don Sebastiani and Doug Manchester, owner of the Manchester Grand Hyatt in San Diego, with the latter donating over $100,000 so far. And sources close to the Protect Marriage campaign say that since the previous filing period closed, they have raised a great deal more money.

POLITICAL FACTORS INFLUENCING THE RACE

Both sides also acknowledge that as California goes, so likely will go the rest of the nation. Flint says, “It would signal the beginning of the end of the fight if we lose here. This is an issue that is bigger than California. People who care about this issue need to understand that this is a national fight.”

Bishop Cordileone agrees. “Society has to understand that marriage and same-sex marriage cannot coexist,” he says. “If Proposition 8 loses, those who believe in marriage will be deemed bigots. Should they be treated as bigots? There are consequences to pay in our society for those who are deemed bigots. Professional licenses aren’t given, you can’t open a school based on bigotry, a lot of privileges are denied. That’s how those who believe in traditional marriage will be treated if same-sex marriage is allowed to stand. And it’s not just a matter of letting people live their personal lives. Catholic schools and hospitals will be forced to hire people in same-sex marriages.”

Proposition 8’s opponents don’t necessarily disagree. As Bill Press, former chairman of the California Democratic Party and a nationally known political commentator, says:

Proposition 8 is the death rattle of the homophobic religious right. They will lose, and that will end the ugly attempts of so-called Christian conservatives to sell discrimination in this country.

One major factor affecting the initiative is the national election. United States Senator John McCain, the GOP candidate for president, has announced his support of the measure. California’s Republican Governor Arnold Schwarzenegger, on the other hand, immediately voiced his support for the Supreme Court’s decision and his opposition to the ballot measure. But the governor’s standing with his fellow party members has soured to the point that this alone may be enough to cause many committed Republican activists to vote for it.

Democratic presidential nominee Senator Barack Obama had previously said he opposes same-sex marriage. But he has also informed a prominent homosexual group that he supports “fully equal rights and benefi ts to same-sex couples under both state and federal law. And that is why I oppose the divisive and discriminatory efforts to amend the California Constitution, and similar efforts to amend the US Constitution or those of other states.”

This could make for a highly ironic turn of events come Election Day. Polls show Obama’s strongest support comes from minority voters, the same voters who most strongly support Proposition 8, thus creating the possibility that by driving many of these voters to the polls he will ultimately be the cause for the passage of a measure he opposes.

Other political factors could also greatly affect the outcome of the election. There are a total of 12 voter initiatives on the ballot, including ones concerning parental notifi cation, animal rights, and alternative energy production.

Then there are the legislative races. Although California is a heavily gerrymandered state, shifting demographics since the last census have thrown some previously secure seats up for grabs. As such, at least six legislative races are expected to be heavily contested.

All of this will impact voter turnout. But the biggest factor in this regard is the presidential race. Nothing increases turnout more than a tight, exciting presidential election, and nothing dampens turnout more than when voters expecta blowout. As one California lobbyist told CWR, “If Obama’s on a roll and the ‘yes’ side doesn’t have a lot of money to spend on TV, this thing probably goes down.”

One late-breaking and potentially decisive factor is a move by former governor and current Attorney General Jerry Brown to change the ballot title and summary language, which California law allows him to do. The title was to have been the Limit on Marriage Constitutional Amendment. However, Brown has changed the title to read, “Eliminates Right of Same-sex Couples to Marry.”

Voters originally would have seen the description: “Amends the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California.” Now, because of Brown’s actions, they will be asked to vote on a measure that “[changes] the California Constitution to eliminate the right of same-sex couples to marry in California.”

Proponents say what Brown did is “prejudicial,” and they took the matter to court, but lost because California law is clear that Brown acted within his rights as attorney general.

While Brown’s moves change what voters will see, it does not change what the Constitution would say should the measure pass: “Only marriage between a man and a woman is valid or recognized in California.”