Frequently Asked Questions about Marriage in California:

In May 2008, the California Supreme Court said that restricting marriage to straight couples is unconstitutional.  So won’t the Court simply say that Prop 8 is unconstitutional?

They might, but the question before the court now is much different than the question the court decided before Prop 8 passed.  The proponents of Prop 8 placed the initiative on the ballot in an effort to amend the state constitution so that the Supreme Court would be powerless to overturn California law banning marriage by same-sex couples.  If the initiative is ultimately deemed to be a valid amendment, then the court can’t rule that it is unconstitutional because it will be a part of the constitution.   In other words, Prop 8, as a more recent and more specific enactment would have more legal weight than the equality guarantees that were violated by the earlier law banning marriage by same-sex couples.   

So why have the ACLU, the City of San Francisco, and other groups filed a lawsuit before the California Supreme Court challenging Prop 8?  Are they making the same arguments as before?

No.  We’re saying that the people who put Prop 8 on the ballot failed to follow the correct procedures.  Because Prop 8 actually revises the constitution and does not merely “amend” it, its supporters had to follow the state constitutionally-mandated procedures for revisions, which require a 2/3 vote of the legislature to get on the ballot.  Prop 8 was never voted on by the legislature.  In fact, the state legislature voted twice to grant same-sex couples the right to marry. 

What’s the difference between an “amendment” and a “revision”?

As everyone who has ever voted in California knows, it is possible to make some changes to the constitution at the ballot box.  But the drafters of the California constitution said that changes that radically alter the underlying principles of the state constitution cannot be made simply through the initiative process.  These changes are revisions to the constitution, which require a more deliberative process – approval by a 2/3 vote of the legislature – to get on the ballot.  We argue that because Prop 8 denies fundamental rights to a historically vulnerable minority, it seeks to alter one of the basic principles on which the California Constitution is based – the guarantee of equal protection under the law.  We also argue that Prop 8 is a revision, not an amendment, because it strips the courts of their quintessential role in enforcing equal protection and protecting other fundamental rights, particularly for vulnerable minorities.

Does the lawsuit cover couples who aren’t plaintiffs?

Yes.  If the California Supreme Court rules that Prop 8 was a revision, not an amendment, to the constitution, Prop 8 will no longer be valid in the state.

Can’t we use the federal constitution to challenge Prop 8?

Yes, this is an option, but one fraught with peril.  It opens up the possibility of going to the U.S. Supreme Court on this issue, and if we lose there, we not only lose the possibility of winning marriage through the courts in California but we do so in the 47 other states that do not currently allow marriage for same-sex couples.  And if we lose, it’s likely that it’s not only marriage that we’ll lose on.  The Court’s decision could have legal ramifications affecting all other aspects of our lives, from employment matters to choices on raising families.  LGBT rights groups from across the country have put together an explanation of why we don’t think a federal lawsuit makes sense at this point.  Check it out here.

What sort of relationship recognition protections do Californians still have?
 
Same-sex couples in California can still become Registered Domestic Partners (RDP).  Under California law, RDPs have many of the same rights, protections and benefits, and are subject to many of the same responsibilities, obligations, and duties as are granted to and imposed upon spouses.  Of course, they don’t have access to the status of being married, so RDPs are not the same as marriage.  To learn more about RDP laws in California, see our RDP FAQ.

If I was married in California before Prop 8 passed, will California still respect my marriage?

We and the California Attorney General strongly believe that the state must continue to honor the marriages of all of the same-sex couples who married between June 16, 2008 and the passage of Prop 8.  There is absolutely nothing in the language of Proposition 8 to suggest that the initiative would apply to couples who have already legally married.  Unless the language of an initiative specifically says that it is to be applied retroactively, California’s courts have been very reluctant to do so, especially when the newly passed measure is in such stark conflict with existing constitutional provisions.  The California Supreme Court has indicated that it will be deciding this issue when it considers our challenge to Prop 8.  Meanwhile, the state of California continues to respect marriages performed prior to November 5, 2008.

What do I do if I was married in California but now find a specific protection (e.g., my spouse’s health insurance) challenged?

Get in touch with us! We might be able to help, and it also helps to educate the public if we have examples of how same-sex couples are being hurt by Prop 8.

What was the margin of difference on the Prop 8 vote?

About four percentage points.  We didn’t lose by much. In 2000, on virtually the same question, 39% of California voters opposed a ban on same-sex marriage. Just eight years later, 48% of voters opposed such a ban. While our opponents may be celebrating now, the handwriting is on the wall. They won’t be able to hold on much longer.

Did higher turnout among African-American voters cause Prop 8 to pass?

Much was made in the media and blogosphere of one early exit poll that showed a high percentage of African-Americans had voted in favor of Prop 8.  We have reason to believe that information was not entirely accurate.

Moreover, African-American voters made up only about 10% of the electorate.  According to the same exit poll, the other 90% of the electorate also voted in favor of Prop 8.  Even if all of California’s African-American voters had not voted, Prop 8 would still have passed.  To blame Prop 8’s passage on just the 10% of the vote cast by African-Americans seems to us to be the kind of racial scapegoating that is counter-productive to achieving equality for all.

Can the Mormon Church lose its tax-exempt status over its involvement in the Yes on 8 campaign?

Every 501(c)(3) tax-exempt organization – from the Mormon Church to the ACLU Foundation – is subject to restrictions on political activity.  Any 501(c)(3) organization that is found to have violated those restrictions can be subject to sanctions by the IRS, up to and including a revocation of tax-exempt status.

It is up to the IRS to determine if the Mormon Church violated 501(c)(3) rules.  If the IRS discovers that it did, then the church could lose its tax exempt status.  California’s Fair Political Practices Commission (FPPC) has announced that it is conducting an investigation into improper political activity by the Church, but even if improprieties are found, the FPPC does not have the authority to revoke the Church’s tax-exempt status.

What can I do to get involved now?

If there’s one deficit that this election did show, it’s this: we need more people in our movement.  To secure legal recognition of LGBT rights everywhere, we’re going to need more of our supporters – gay and straight alike – to get involved and start taking action.  Coalitions need to be built.  Funds need to be raised.  Envelopes need to be stuffed and voters need to be called.  Use the Find Local Groups tool on our home page and contact your local LGBT-rights group or ACLU affiliate to find out what’s going on in your area.

When it comes to LGBT rights, the most important action we can take to change hearts and minds is to tell our own stories in our own words.  We need to let everyone know what it means to be LGBT.  If a co-worker, neighbor or acquaintance knows your story and the impact it will have on your life when they vote to take your rights away, they’re much less likely to do so.  See the Changing Hearts and Minds section for more information.

I am a lawyer and would like to help out with the lawsuit – what can I do?

The legal team working on the Prop 8 lawsuit has been deluged with wonderful offers of support from lawyers across the country, so we’re already well-supported.  But we need everyone’s help to make marriage equality a reality.  See #11 above for suggestions of what you can do to help.