Judicial Activism: Same Sex Marriage And The Aftermath Of Proposition 8
THE PROPOSITION 8 CAMPAIGN STRATEGIES
Although the advertising efforts of supporters of Proposition 8 successfully captivated the attention of a large audience, their contentions were, at best, misleading. How did they manage to sway enough undecided voters to actually pass the proposition?
Proponents of Proposition 8 argued the constitutional amendment would protect children from being taught the virtues of gay and lesbian matrimony in their education programs. Supporters feared the state might force teachers to define and instruct marriage as between “any two persons” rather than between a man and a woman.
Opponents of Proposition 8 spent a lot of time defending against the Proponents’ “education argument,” which ended up being a red herring. In fact, polls revealed that most voters were not even concerned with the effect that gay marriage may have on education programs. Did the strategists of the No-on-8 campaign spend too much time in defense mode? Maybe, if the campaign spent more time educating the undecided voters on the civil rights argument rather than defending the Proponents’ “education argument,” they may have swayed some of the undecided voters in the other direction.
The due process, privacy, equal protection, and free speech clauses of the California Constitution (Cal. Const., art. I, sections 1,2, 7) guarantee the fundamental “right to marry.” The California Supreme Court found statutes discriminating against the rights of homosexuals to marry were unconstitutional. Under the equal protection clause of the California Constitution, statutes discriminating against “suspect classifications” are subject to strict scrutiny. Previously recognized suspect classifications include race, gender, and religion. In re Marriage Cases broadened the scope of classes to include sexual orientation as a suspect classification.
Do you think all voters knew that Prop 8 proposed to take away peoples’ civil rights?
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