The Aftermath of Proposition 8
by Melissa Hruza
Nicknamed “Prop. Hate” by activists around the world, Proposition 8 found many opponents when it was passed in California in 2008. Celebrities and public figures from around the country painted their faces with “No H8.” Worldwide, LGBT activists stood up against the repeal of marriage rights for same-sex couples. One group in favor of Proposition 8 was the California Supreme Court; the Court had ruled, six months earlier, that excluding same-sex couples from marriage rights was unconstitutional.
Alexandra Lang Susman is a Sears Law Teaching Fellow for the Williams Institute on Sexual Orientation at the University of California, Los Angeles (UCLA), which seeks to advance sexual orientation law and public policy through independent research and scholarship. The Institute provides research on various sexual orientation topics for public and private policy proposals, which directly affects LGBT families, as it gives litigators the ammunition they need to poke holes in arguments against LGBT marriage rights.
“There used to be this assumption for litigators that LGBT folks weren’t raising families,” says Susman. “A decade’s worth of Williams’ research [proves] that one in four LGBT couples are raising families. Now, you can go to a court and argue that as a benefit for LGBT advocacy.”
The research completed at Williams involves sexual orientation studies around the country. Even though it’s based in California, which is typically thought of as a more “liberal” state, Susman found the passage of Proposition 8, commonly called “Prop. 8,” to be an unexpected outcome.
“Prop. 8, for many of us—It was shocking how big the margin was,” she says. “I think that most of us didn’t think that it was going [to pass]. It’s California. You have a different version of reality, and I think that a lot of people were shocked.”
The particular challenge of Proposition 8 applies to families who missed their opportunity to get married. “There is this problem because you have people—18,000 couples—that were married between [the initial case establishing LGBT marriage in California] and Prop. 8,” Susman says. “Those people remain married. So essentially you have, in the state of California, same-sex couples that are domestic partners, [and] same-sex couples that were married in that interim period and their marriages are legally recognizable. So it’s a really strange state of affairs.”
The legal issues surrounding Proposition 8 are unique to California. “Frankly,” Susman explained, “it’s very hard to find anything analogous in legal history where you have people that are similarly situated that happened to take advantage of the law in this small window. So, even though they are the exact same as the couples who are being legally barred from being married, they are married ... If you’re a child of LGB folks ... your parents could be married if they took advantage of the law and are one of the 18,000. If for some reason they decided to wait a couple of months, then they can’t get married.”
Chia Connolly is the daughter of a same-sex couple in San Francisco. She says that her parents are not married and seem to be fine with just having a commitment to each other. The fact that they are not married isn’t particularly problematic for her.
“I didn’t really think about [marriage] when I was younger because [my parents each] have a ring that the other bought them and they had their ceremony,” says Connolly. “I figured that was what a marriage was—when two people love each other they just kind of … have their own commitment. I didn’t realize until later that a marriage was actually like a contract with the government, and then I didn’t think it was all that important. ... My parents didn’t need one and didn’t really want one.”
Maetal, age 13, also grew up and currently lives in San Francisco. She says that her mother and her partner were interested in getting married, but decided to wait.
“[My mom] said she didn’t want to get married when she knew that it might not be legal in a year or two years,” Maetal says. “She wanted to be able to get married and know that everyone, forever, who was LGBT could get married whenever they wanted.”
Just because her parents are not married now doesn’t mean that marriage is not an important issue for Connolly.
“If they wanted to get married, then I would totally support them and be fighting even harder than I do now,” she says, “because I think marriage is important for everybody. But as far as my parents go, they don’t feel the need to get married.”
Connolly has worked to support the LGBT community. She currently works as an intern at COLAGE’s office in San Francisco. She and some of her friends also created this video, asking that Californians vote no on Prop. 8.
Susman also discusses the fact the decision about a constitutional question was left to the voters, versus being decided by the judicial system.
“Generally speaking, courts decide what is constitutional, and not voters,” Susman says. “There’s a certain amount of shock about that, because the right was granted [by the courts] and then taken away. Which makes it, I think, a particularly bitter pill to swallow.”
In 2008, the California Supreme Court decided that limiting marriage to a man and women was unconstitutional, in a group of consolidated actions called the In re Marriage Cases. While domestic partnership was legal in California and available to same-sex couples, the decision wasn’t based only on the differences in rights between domestic partnerships and marriage.
“[The Court] noted the differences between domestic partnerships in California and marriage, but that wasn’t really the basis,” says Susman. “Their holding wasn’t so much that there was differences in rights, but that by creating the separate status, it violated the equal protection clause because it was creating a separate but not equal institution that was demeaning to same-sex relationships. ... I do think that it’s a tough argument to make under equal protection that, given the jurisprudence, [domestic partnership and marriage] can be equal.”
Of course, even if the rights were extended to domestic partnerships, the separate terms of marriage for opposite-sex and same-sex couples would still be problematic to some.
“I think as lawyers, you’re concerned with rights,” Susman says. “You also have to be concerned with the fact that your clients may have particularly visceral feelings ... about the institution of marriage itself and feeling like that it’s sort of ... real discrimination against the LGBT community. I think for a lot of people, tearing down that discrimination would provide a lot of comfort for them and for the community.”
Connolly also expresses that she is more concerned with equal rights first.
“I think that if people don’t want [domestic partnership] to be considered marriage ... that’s fine,” she says. “The term ‘marriage’ doesn’t have to be applied [to] us, but we should have all the rights [of] all of those who do have the chance to get married. That’s what’s most important.”
The only way to repeal Proposition 8 is with another statewide vote, since the repeal through the Supreme Court failed. Susman mentions that some groups are looking at 2012 as the year to allow Californians another chance to vote on the issue. However, that does not fix treatment of same-sex married couples when they travel with their families.
“I also think [marriage equality is] important for LGBT families because without the marriage right, you always feel like your family is in jeopardy,” she says, “particularly when you’re talking about inter-state recognition. Because a couple that’s raising children in California and has a domestic partnership, if they stay within the state, I think their family can feel fairly secure.”
On the other hand, Susman explains, many couples with children are concerned that when they cross state lines, their relationship may not be respected the same way.
“[Other states] are not [necessarily] going to respect parental rights of the non-birth parents. So, it really becomes a really fraught situation for families in terms of keeping their families together. ... Because I think that while a family can be intact in a state that has robust protections, it becomes very scary for families that travel to think, ‘What happens if we get in an accident? What happens if one of us ends up in the hospital? Will they recognize that these are our children? Will they allow hospital visitation rights?’ and a whole host of things that can serve to make LGBT families feel less secure.”
Maetal says that having a gay parent is not something she thinks about every day, but it’s something that is constantly present.
“Sometimes it’s hard to know that my family can’t do something that so many other families can,” she says.
Susman says that, in her view, the disservice is to the children of LGBT families.
“People who are fighting are always talking about the children,” Susman says. “But the fact is, one in four LGBT families are raising children, and those children deserve to feel [as] secure in those families as children being raised in heteronormative families. So I think that’s something that’s really important in families, that’s often overlooked.”
If you or your family would like to be part of our series about same-sex marriage, or would like to suggest a story idea, please contact writer Melissa Hruza at melissahruza@rainbowrumpus.org.
