Same-sex marriage ban wins

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/11/05/BA3B13UM63.DTL

Same-sex marriage ban wins; opponents sue to block measure
John Wildermuth,Bob Egelko, Chronicle Staff Writers
Wednesday, November 5, 2008

SAN FRANCISCO -- After a heated, divisive campaign fueled by a record $73 million of spending, California voters have approved Proposition 8, which would change the state Constitution to ban same-sex marriage. Opponents promptly filed suit to try to block the measure from taking effect.

With 96 percent of the vote counted, Prop. 8 was winning by a decisive 400,000-vote margin, 52.2 percent to 47.8 percent. It piled up huge margins in the Central Valley and carried some Democratic strongholds such as Los Angeles County. The measure lost in every Bay Area county but Solano.

As the vote counting continued this morning, opponents of Prop. 8 filed a lawsuit directly with the state Supreme Court - whose May 15 ruling legalized same-sex marriage - asking the justices to overturn the measure.

The suit argued that Prop. 8 would change the California Constitution in such fundamental ways - taking important rights away from a minority group - that it amounted to a constitutional revision, which requires approval by the Legislature before being submitted to the voters. The case was filed by the American Civil Liberties Union, Lamda Legal and the National Center for Lesbian Rights.

The same groups asked the court before the election to remove Prop. 8 from the ballot on those grounds. The justices refused, but left the door open for a post-election challenge.

"A major purpose of the Constitution is to protect minorities from majorities," said Elizabeth Gill, an ACLU lawyer. "Because changing that principle is a fundamental change to the organizing principles of the Constitution itself, only the Legislature can initiative such revisions."

The suit was filed on behalf of six unmarried same-sex couples and the gay rights group Equality California.

Passage of Prop. 8 leaves more than just the future of same-sex marriage up in the air. Questions have also been raised about whether the marriages of the estimated 18,000 gay and lesbian couples who have wed since June will be recognized as valid.

Supporters of the ban have said their measure was intended to be applied retroactively. "We're confident voters did go to the polls to vote 'yes' to protect traditional marriage," said Chip White, a spokesman for the Prop. 8 campaign.

Same-sex marriage bans won easily Tuesday night in Florida and Arizona. It was a rematch in Arizona, which in 2006 became the only state to ever reject a ban on same-sex marriage.

The campaign in California pitted those who argued that a same-sex marriage ban was nothing more than outdated discrimination against gays and lesbians, and conservatives and Christian groups who countered that the state and the courts have no right to unilaterally change a definition of marriage that has existed for centuries.

The flood of dollars that poured into the state from every part of the country made Prop. 8 the most expensive social issue race the nation has ever seen. And behind every one of those checks was someone desperately worried about what the election result could mean to them and their state.

To San Francisco Mayor Gavin Newsom and other opponents of Prop. 8, as well as to religious groups that backed the measure, the proposed ban on same-sex marriage was the second-most-important election in the country Tuesday.

The Prop. 8 battle, born in San Francisco, came eight years after more than 61 percent of California voters came out in favor of Prop. 22, which banned same-sex marriage in the state. But supporters had little time to savor the victory.

In 2004, Newsom set off a political and social explosion when he ordered marriage licenses issued to same-sex couples in the city. Gay and lesbian couples flocked to the city, showing up in wedding dresses and tuxes for the chance to be legally married. Despite outraged reaction from across the state and nation, Newsom didn't back down until a court ordered the city to stop issuing the same-sex licenses.

In 2005 and 2007, the Legislature passed bills that would have allowed same-sex marriage, but Gov. Arnold Schwarzenegger vetoed them. In 2006, the state Supreme Court voted unanimously to hear several challenges to same-sex marriage and rule on them.

Opponents of same-sex marriage were ready with a challenge that became Prop. 8.

Worried that a governor after Schwarzenegger would sign a same-sex marriage bill or that the court would rule against them, Prop. 22 supporters began putting together another initiative drive to make the same-sex marriage ban part of the California Constitution, beyond the reach of either the Legislature or the courts. They raised the money and gathered more than 1.1 million signatures by this spring.

On May 15, the state Supreme Court cleared the way for same-sex marriage. The court voted 4-3 to overturn Prop. 22 and the same-sex marriage ban, ruling that the state Constitution provided a right to marry that extends to same-sex couples. The three dissenting justices argued that it was up to the voters or the Legislature, not the court, to permit same-sex marriage, a view quickly taken up by opponents of the ruling.

"Four judges ignored 4 million voters and imposed same-sex marriage on California," Prop. 8 supporters said in a TV ad. "It's no longer about tolerance. Acceptance of gay marriage is now mandatory."

It was an argument that continued all the way to election day.

But with same-sex marriage legal in California, opponents of Prop. 8 could run a totally different campaign from the type that had lost virtually every election over the issue across the nation.

Rather than arguing for same-sex marriage, opponents took the moral high ground atop the Supreme Court decision and argued that a vote for Prop. 8 was a vote for discrimination. They got another bit of help when state Attorney General Jerry Brown ordered the Prop. 8 ballot language changed to say that it "eliminates the rights of same-sex couples to marry."

Prop. 8 backers charged that politics, not legal rectitude, was behind Brown's decision. They went to court, but lost.

That allowed Prop. 8 opponents, worried that many voters were not enamored with the idea of same-sex marriage, to run a TV campaign that almost never mentioned gays or lesbians or showed them in an ad. Instead, the ads charged that Prop. 8 supporters wanted to take away rights from a single, unnamed group of people, which opponents said was not fair.

E-mail the writers at jwildermuth@sfchronicle.com and begelko@sfchronicle.com.