Prop 8 Hearing on March 5 in California’s Supreme Court

Dear Friend and Reader,

After millions of dollars in campaign contributions, days of protests and miles of writing, the California Supreme Court will hear three arguments to overturn Proposition 8 and return the freedom to marry to same-sex couples. The hearing will take place this Thursday, March 5, from 9 am to 12 pm PT.

For those of you who are jumping in in the middle, California’s fight for marriage equality has been in the courts and on the ballot since 2000. That was the year George Bush was elected for the first time, the Uniting American Families Act was first introduced to the House of Representatives and a conservative group put Prop 22 on the California ballot.

Proposition 22 took the loophole out of California’s marriage law on March 7, 2000. Before then, marriage was defined within the state as “between a man and a woman,” but included a clause that recognized all legal marriages performed in other states. In other words, it opened up the possibility to get same-sex married somewhere else, and have it recognized in California. (New York State currently has a provision like that, thanks to Gov. Paterson.)

The proposition was approved by an obvious majority:В 61.4% in favor and 38.6% against. Since then, marriage equality advocates worked to get the proposition overturned.

There was a mid-term scuffle in 2004-5, when the mayor of San Francisco began issuing marriageВ licensesВ to same-sex couples, which were later nullified. Also, a gay marriage bill was passed in the State House and Senate, but Gov. Terminator [Schwarzenegger] vetoed it.

In 2008, California’s Supreme Court conglomerated many cases opposing Prop 22 into one, and called a March 4 hearing, entitledВ In re Marriage Cases. On May 15, the Court voted 4-3 to overturn Prop 22, and same-sex couples began marrying on June 17. It was the summer of love all over again: Ellen DeGeneres and Portia de Rosse got married, delighting lesbians around the world who love taffeta and pink diamonds, and Star Trek fans swooned when Sulu married his long-term earthling, Brad Altman.

Then autumn rolled in, and so did Proposition 8.

Prop 8 is very similar to Prop 22: it includes defining marriage in the state constitution as between a man and a woman. It also seeks to nullify the In re Marriage Cases decision, so it could potentially have a retroactive effect and de-marry the 18,000 same-sex couples that got hitched during the summer of love.

All the McCain/Obama campaign hype leading up to Nov. 4 was deafening, but it was a mere whisper compared to California’s slug-out over Prop 8. In total, each campaign spent about $40 million trying to convince Californians to vote for or against marriage equality. Ads ran incessantly, and ranged from how to take away your neighbor’s rights without them hating you and your kid’s gay teacher is goingВ to make your kid learn about gay stuff and go to gay weddings: to the Church of Latter Day Saints is coming to steal your rightsВ and a mock-Apple commercial depicting no on Prop 8 voters as “cool.”

The vote was too close to call for days, but by Nov. 6 the outcome was clear: 52.3% of voters were in favor of Prop 8, and 47.4% were against. There has been a stay on same-sex marriages in California since then, and the 18,000 couples that married between June 17 and Nov. 4 are now in legal limbo.

On Thursday, California’s Supreme Court will hear three cases: one involvingВ six couples who planned to marry after Nov. 4, andВ four legal organizations. The second case involves Robin Tyler and her partner Diane Olsen: the first same-sex couple to marry in LA county. They’re being represented by feminist lawyer Gloria Allred. Finally, the city and county of San Francisco, LA county, and Santa Clara county will state their case.

All three groups will have to answer the following three questions, as posed by the state supreme court:

(1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?

(2) Does Proposition 8 violate the separation-of-powers doctrine under the California Constitution?

(3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

There are also intervenors in all three cases, represented by state senator Dennis Hollingsworth. An intervenor is an individual or group that can be heard in a case, on the conditions that they are not directly involved in the case but will potentially be affected by its outcome. Needless to say, Hollingsworth is a giant mouthpiece for religious conservatives and proponents of Prop 8.В

Following the hearing, the Court will have 90 days to release its written decision.

Yours & truly,

Rachel Asher