Analysis of California's Propositions 8: Limits on Marriage

Policy Brief 76

Executive Summary

Once again gay marriage has emerged as a hot-button issue in California. Back in 2000, voters approved Proposition 22, which declared that the state would only recognize marriage between a man and a woman. But earlier this year, in a surprise decision, the California Supreme Court ruled that marriage was a fundamental civil and human right, and that the state could not deny it to anyone based on sexual orientation. In response, gay marriage opponents revived the Prop. 22 language, this time in the form of a constitutional amendment known as Proposition 8. ProtectMarriage.com, the leading group pushing the measure, and No on 8, Equality for all, the chief opposition organization, have raised a total of more than $41 million to fight it out through Election Day.

According to public opinion polls, Californians remain deeply divided about gay marriage, although the polls reflect a belief that gay couples should at least be able to form unions and obtain marriage-like benefits, even if the union is called some name other than “marriage.” There seems to be some cognitive dissonance over the question of the definition of marriage, for what difference should the name of the relationship or institution make if the rights afforded to those involved are the same?

In its May In re Marriage Cases ruling, the state Supreme Court definitively asserted, “[T]he right to marry is not properly viewed as simply a benefit or privilege that a government may establish or abolish as it sees fit, but rather that the right constitutes a basic civil or human right of all people.” [emphasis in original] The court was correct to recognize marriage as a fundamental right, for the decision to pledge one’s love, devotion and fidelity to a significant other is one of the most personal and important decisions an individual can make. What is more, a gay couple’s decision to marry does not infringe upon a straight couple’s right to do so, or vice versa.

Part of the problem with the issue is that the government has inserted itself into such a personal issue in the first place by conferring certain benefits on married couples, and then establishing the definitions and rules that determine whether or not one is eligible for such benefits. In the absence of government intervention, all people would be free to define marriage however their religious, moral or philosophical compass might dictate, without affecting the rights of others to do the same.

Since the choice to extricate government from marriage is not on the ballot, however, the broader definition of marriage established by the California Supreme Court’s decision, which effectively ended the undesirable “separate but (almost) equal” status of straight “marriage” and same-sex “domestic partnerships” in the state, is the next best alternative.

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