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California Upholds Gay Marriage Ban

But 18,000 Same-Sex Couples Who Married Before Prop 8 Can Retain Rights

Susan Donaldson James

Outside CA Supreme Court just before Prop 8 ruling. (flickr photo by Steve Rhodes)

The California Supreme Court has upheld Proposition 8 -- the controversial ballot question that banned same-sex marriage.

At the same time, the ruling will allow about 18,000 same-sex couples 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, aged 12 and 16, 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."

Christian groups that applauded retention of the ban say that the ruling on those 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," said Jennifer Pizer, director of the marriage equality project for Lambda Legal.

Lambda has already launched an educational campaign, Marriage Watch California, that will specifically target the communities of color and diverse church groups, which 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 Mormons, who raised a record $83 million to pass the referendum.

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 have planned rallies tonight, preparing to be arrested in a mass demonstration of civil disobedience.

The Family Equality Council, which has fought to overturn the gay marriage ban, said they will be organizing national grassroots protests in Day of Decision rallies.

Putting a new question on the ballot to legalize gay marriage could take months, and many gay advocates say 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 effects my (tradtional) marriage is entirely the wrong question," he siad. "The right question is how is gay marriage going to effect 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.

Waiting for the decision "has been an absolutely gut-wrenching experience," Molly McKay, a spokeswoman for Marriage Equality USA, told the Associated Press.


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"As Californians, we are all under tremendous strain worrying about the economy, our jobs and our families," she said. "On top of that, gay families have been living for months with the fear that the court will allow a bare majority of voters to strip gay and lesbian families of their constitutional protections and eliminate our marriages -- or just as bad, eliminate new couples' ability to get married."

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 many legal experts say the Supreme Court would not likely undermine the state's citizen initiative process by reversing the gay marriage ban.

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.

If California's court upholds the gay marriage ban, gay rights advocates hope to have it repealed in a 2012 ballot initiative. Groups have already begun raising money and airing television ads.

Gay Marriage, Adoption

If the justices strike down the lawsuits, Proposition 8 supporters could ask for a legislative proposal to limit marriage to between a man and a woman.

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

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 June 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.

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 LGBT 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."

Other states that had gay marriage on the ballot in 2008 included Arizona and Florida. Voters in both states passed measures to amend their constitutions to specify that only a union of one man and one woman shall be valid or recognized as a marriage.

In Arkansas, residents approved a measure aimed at preventing gay couples from adopting children. The measure, Proposed Initiative Act 1, goes further than just barring same-sex couples from adopting; it bars any individual cohabiting outside of a valid marriage from adopting or providing foster care to minors.

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