One Year of Prop 8: A recap

A year ago today, California voters adopted Proposition 8 by a 52-48 margin. Last night, voters on the other side of the country voted the same way, by almost exactly the same margin.

I was interviewed earlier today about the issue, and the anchor asked a few questions like “What happened?” and “What’s next?” In the interview environment, I could give only quick sound bite answers. But those are complicated questions which deserve deeper discussion. So in this post, I’ll talk about what has happened in the marriage equality movement over the past year; and in a follow up, I’ll talk about what’s next for marriage equality.

Post-Prop-8 events fall into six major categories:`

1. The necessary clarification on interim marriages. Prop 8 proponents argued that those marriages were invalid; the Cal Supreme Court rejected that argument in its May 2009 decision, effectively grandfathering in those marriages.

2. The state law constitutional challenges. Advocates including the NCLR, the City of San Francisco, and the Attorney General made a variety of state law challenges to Prop 8, including that it was a revision (I explain this to lay audiences as meaning “too big to be passed by the referendum process”) and that it violated fundamental rights under the state constitution. Those claims were dismissed by the Cal Supreme Court in May as well. Thus, the May decision upheld Prop 8 in general, but also grandfathered in the interim marriages.

3. The federal law challenges. This is the lawsuit filed in Federal court by Ted Olson and David Boies. It recently passed the first hurdle, as the judge rejected the motion to dismiss the lawsuit. The suit is ongoing, but it widely viewed as a longshot.

4. Related news in California, mostly backlash-related. There was a massive backlash after the November election, with highly visible protests and vigils, and some violent or otherwise illegal incidents (like vandalism). Activists also used disclosure laws to bring economic sanctions of sorts, posting information on the internet to facilitate boycotts against Prop 8 supporters. Some activists have also argued for legal sanctions over Prop 8 campaign issues, in particular that churches and other organizations violated campaign disclosure laws. There has been a visible counter-backlash as well, as churches and individual supporters have argued that they are being unfairly targeted for exercising their own rights of speech and voting.

5. Political developments in other states. This is where things have gotten really interesting. On November 5th of last year, only one jurisdiction in the country (Massachusetts) allowed same sex marriage. A year later, there are now five (and it was awfully close to six, with Maine.) Despite Prop 8, marriage equality has been on the upswing.

Iowa and Connecticut courts ruled in favor of marriage equality. Vermont, Maine and New Hampshire pioneered a new trend with marriage equality bills passed by the legislature. This potentially undercuts the highly effective democratic-legitimacy rhetoric that same sex marriage was being forced on the public by unelected judges. (But see Maine, in future discussion.)

Maine and New Hampshire are especially important, for different reasons. Maine’s law went to the voters today, and while it failed there are very interesting ramifications of the Maine vote (which we will see in the follow up post). New Hampshire pioneered a compromise model with built in conscience protections for religious officiants and organizations. The model of legislatively passed marriage equality bills with conscience protections may be the future of the movement.

6. Finally, developments in federal law. Here, it has largely been the sound of silence. There has been recent movement on some gay rights issues (the recent hate crimes bill) but there has been deafening silence on the Defense of Marriage Act (DOMA). As long as DOMA is on the books, marriage equality cannot exist, because federal law (social security, tax, immigration) does not recognize same sex marriages. President Obama made a campaign promise to repeal DOMA. So far, there has been no movement on that front.

That’s my recap of what has happened over the past year in marriage equality (or, what I would have told the interviewer if I had had 20 minutes). In a follow up post, I’ll address the equally complicated question of, “what next?”

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3 Responses

  1. Geoff B says:

    Kaimi, good rundown as usual. It might be worth mentioning that there has been no surge of support for SSM, and in fact Gallup shows support for SSM decreasing slightly:

  2. Guy Murray says:


    Please correct me if I’m wrong; but, President Obama, notwithstanding his campaign promise has no Constitutional authority to repeal any law passed by Congress and signed into law by a previous President. I think DOMA is the least of the hurdles facing genderless marriage at the federal level. The complete lack of any federal legal precedent to establish what the CA Supreme Court did so cavalierly in its opinion that was overturned by the voters: 1. A newly created protected class of sexual orientation; and, 2. A newly created fundamental right of “gay marriage.”

    Thanks for the write up.

  3. Nate W. says:

    I’m not Kaimi, but I will say that I think you’re misinterpreting what he’s saying, Guy. We can all agree that the President has no authority to unilaterally repeal a duly-passed statute. As far as federal recognition of a same-sex marriage performed by a state, DOMA is the only thing in the way. Compelling other states to recognize and perform same-sex marriages is a different question from federal recognition of state-solemnized same-sex marriages.