California Upholds Gay Marriage Ban

Court grandfathers in 18,000 gay marriages, creating a potential "conflict."

November 4, 2008, 11:28 PM

May 26, 2009— -- The California Supreme Court has upheld Proposition 8, the controversial ballot initiative that banned same-sex marriage in the state of California.

At the same time, the ruling allows about 18,000 same-sex couples who'd already married to retain the rights they attained during the brief six-month period that gay marriage was legal in the state.

"There it goes," said Jim Schnobrich, who married his partner of 27 years in Pasadena, Calif., last September. "We have to keep going."

Still, the couple, who have two children, ages 13 and 14, said that they are now in a "weird class," as the ruling preserved their 8-month-old same sex-marriage.

"That's good news, but the bigger thing is that now we have this weird status that other people can't have. There is this kind of equality situation where people are maybe thinking we aren't really married."

"But it's not going to change anything in our lives," he told "We feel strongly about equality and will move ahead. But I worry for my kids and how they feel. I want them to be in a place like every other family at their school. It's hard to explain to them."

The announcement of the decision caused outcry among a sea of demonstrators who had gathered in front of the San Francisco courthouse to await the ruling.

Christian groups applauded retention of the ban.

"The Court's decision is a victory for the people of California and their desire to protect the traditional definition of marriage," said Robert Tyler, lawyer for Advocates for Faith and Freedom, which supported the ban.

But others worried that the mixed ruling, honoring existing same-sex marriages, could create a conflict -- not only in the marital rights of Californians but in adoption and income tax laws.

"It's disappointing that the court will continue to uphold the legality of those who married during May to November of last year," said Bruce Hausknecht, judicial analyst for Focus on the Family in Action. "We don't know what the situation will be like, but it's likely to cause havoc in the courts as they try to deal with a class of individuals that look totally different."

Gay rights advocates, disappointed with the ruling, said their next step would be to "take it back to the voters."

"Advocates for equality are convinced that Prop 8 will be overturned at the ballot," said the Family Equality Council, which fought the ban, in an official statement.

"Prop 8 was a sad, knee-jerk response to the sight of couples in love celebrating their happiness with family and friends," said Jennifer Pizer, director of the marriage project at Lambda Legal.

"It badly damaged the Constitution's equality guarantees," she said. "With today's deeply disappointing court decision, it is up to us as a caring, moral people to repair our constitution at the ballot box."

Minority, Church Groups Targeted

Lambda has already launched an educational campaign, Marriage Watch California, which will specifically target the communities of color and diverse church groups that overwhelmingly supported Proposition 8.

"We will give education and legal support as part of a broad effort all over the state to provide greater visibility on why this issue is important and why there is no basis in the fear mongering from the other side," Pizer told

The contentious campaign pitted gay rights activists against Christian church groups, including the Mormon church, which raised a record $83 million to pass the initiative.

Justices considered a series of lawsuits to overturn the ban, which overruled a 4-3 June court decision that briefly legalized same-sex marriage. Those suits claim Proposition 8 was put on the ballot improperly.

Gay rights marches began early this morning in California and groups have planned rallies tonight, preparing to be arrested in a mass demonstration of civil disobedience.

Join the Impact, which has fought to overturn the gay marriage ban, said they would be organizing national grass roots protests in Day of Decision rallies.

Putting a new question on the ballot to legalize gay marriage could take months, and many gay advocates said it might not be viable until 2010 or later.

"We have a lot of educating to do to convince [voters] that gays and lesbians are equal," said Lambda legal's Pizer. "It's very important that people agree on that point, and that the people of California share that belief."

But Focus on the Family's Hausknecht said pro-Proposition 8 groups are already preparing their "talking points" for a new referendum on the issue.

"How gay marriage affects my [tradtional] marriage is entirely the wrong question," he said. "The right question is how is gay marriage going to affect society in general and religious liberties and the rights of conscience?"

"Across the country we've seen the impact on religious freedom, not just same sex marriage but nondiscrimination statutes," he said.

Gay Marriage Legal in Five States

Opponents of Proposition 8 argued that it revised the California's equal protection clause to such a dramatic degree that its sponsors needed the legislature's approval to submit it to voters.

But several justices at a March hearing said they were skeptical of that argument and, in the end, the Supreme Court did not undermine the state's citizen initiative.

Since the passage of Proposition 8, gay marriage has gained momentum around the nation. Iowa, Maine and Vermont have joined Massachusetts and Connecticut in recognizing same-sex couples. Similar proposals are under way in New Hampshire and New York.

The Democratic-controlled California Legislature has twice passed measures to legalize gay marriage, but they were vetoed by Gov. Arnold Schwarzenegger.

"While I believe that one day either the people or courts will recognize gay marriage, as Governor of California I will uphold the decision of the California Supreme Court," Schwarzenegger said today. "Regarding the 18,000 marriages that took place prior to Proposition 8's passage, the court made the right decision in keeping them intact. I also want to encourage all those responding to today's court decision to do so peacefully and lawfully."

With passage of Proposition 8, California amended its constitution to specify that only marriage between a man and a woman is valid or recognized.

In May 2008, the state's Supreme Court overturned a gay marriage initiative. That decision allowed thousands of gays and lesbians to be legally married in that state; gay couples across the state decided not to take their chances, choosing to marry before voters took up the measure.

The passage of Proposition 8 set off a backlash that rippled across state borders. Organizers used Internet sites such as Facebook to draw huge crowds from New York to Los Angeles and cities in between.

Advocates turned the vote on Proposition 8 into a countrywide referendum on gay rights, calling it "the new frontier in the civil rights movement."

The protests lining the streets were a contrast to the joyful celebrations of same-sex weddings at city halls throughout California last summer. Those ceremonies were filled with a sense of hope and acceptance. Now that has given way to anger, defiance, and a war of words.

Mormons Raised Funds

The Mormon Church has become one of the key targets of protestors after it was revealed that their members contributed millions of dollars to defeat gay marriage.

Many like Tony Perkins, president of the Family Research Council, a conservative Christian lobby based in Washington, joined in the fight to pass the ban, saying it was "more important than the presidential election."

"We've picked bad presidents before, and we've survived as a nation," Perkins said. "But we will not survive if we lose the institution of marriage."

Advocates on both sides of the issue spent $83 million on the ballot campaign, the most ever on a social issue in the nation's history.

"It's a staggering amount," said Matt Coles, director of the Lesbian Gay Bisexual and Transgender Project at the American Civil Liberties Union, which opposed the ban. "California is a cultural trendsetter. If voters decide same-sex couples can marry, it has an enormous influence."

But Leslie Fisher, 45, who owns a house with her same-sex domestic partner in Oakland, Calif., said the the referendum on gay marriage was "symptomatic" of a need for "restructuring" of government in California.

"It's a weird mix of extremes," the marketing consultant told "There are really liberal and really conservative people in the state and it's not representative of the people. That's why issues are battered back and forth -- in our favor one year and not the next."

"Anybody can get a bunch of signatures and overthrow was is passed and the issue goes back and forth," she said.

Fisher insists she will not get married until it is legal for all gay couples. "I think it's a civil rights issue and marriage for gays and lesbians shouldn't be made a concession."