Penn Law prof: Prop 8 raises serious questions

Californians went to the polls this past Election Day and did something rarely seen in American politics—they removed a right from a constitutionally protected group of citizens.

Proposition 8, which passed with less than a 5 percent margin, changes the California Constitution to eliminate the right of same-sex couples to marry in the state. It also provides that only a marriage between a man and a woman is valid or recognized in California.

Tobias Barrington Wolff, a Penn Law professor who has been examining the issue of equality for gay couples for more than a decade, says part of what is troubling about Prop 8 is that it isn’t just a case of taking rights away from gay and lesbian communities. It is, he says, about minority rights as a whole.

“If rights can be taken away from one group of people through a simple majority vote in the ballot initiative, then that means rights can be taken away from any group of people through a simple majority vote,” he says.
On behalf of a broad coalition of civil rights groups, Wolff has filed a petition with the California Supreme Court to stop the enactment of Prop 8. The Current spoke with Wolff recently about Prop 8, what went wrong in ‘liberal’ California, and the legal resolutions he hopes to see.

Q: California is probably viewed as a fairly liberal state. Yet Prop 8 succeeded there. Why?
I think part of the reason that Prop 8 passed, frankly, is its proponents used advertising that was very misleading. They used advertising that suggested that treating gay couples equally was going to have an impact on what teachers had to teach in schools and that just wasn’t true. They used advertising that suggested that somehow this would be a threat to religious freedom, and that just wasn’t true. It’s hard to counter falsehoods sometimes.

Q: Does the California Supreme Court have the power to overturn a state constitutional amendment?
The California Constitution specifies two different ways that their constitution can be changed. One is what they call an amendment, and that can be done through the ballot initiative process by collecting signatures, putting a proposed initiative on the ballot, and have a simple majority vote. And that’s what happened with Prop 8. The second way, which is harder, is called a revision. Under a revision, you need to get two-thirds of both houses of the legislature to propose a change to the constitution, which is a big supermajority, and then it gets put on the ballot and then the people vote on it. Prop 8 didn’t do that and [its proponents] don’t have anything like that kind of support in the legislature. So the question that the Supreme Court of California is being presented with now is ‘Was it legitimate to do Prop 8 through a simple initiative just by collecting signatures or is this the kind of change to the constitution that can only be done with a full revision that involves getting the legislature involved?’ And not only can the California Supreme Court decide that issue, they actually have to.

Q: Do you think the federal government should get involved to ensure that same sex marriages are recognized in all states?
The short answer, actually, is no, in the following sense. There’s a law on the books, the federal Defense of Marriage Act (DOMA), and it’s a very bad law and I think we need to get rid of it. That law prevents gay couples from getting any kind of equal treatment from the federal government, whether they’re married or civilly united or a domestic partner or whatever. It also talks about this full faith and credit idea, which relates to what happens when you travel from state to state. But, in fact, even if we get rid of the Federal DOMA—or I should say when we get rid of the federal DOMA because I think we will—states still have a lot of freedom to decide when to recognize marriages from other states.

Q: Is there any word on what’s going to happen to the estimated 18,000 same sex couples who were married before Prop 8 passed?
That’s one of the issues that some of the lawyers in this case are trying to help the Supreme Court of California figure out. One of the many reasons that Prop 8 is really bad is we’ll have to figure out what will happen to those couples if Prop 8 survives. I think the best answer is that those couples should retain all of their rights as married couples and that their marriages should not be interfered with, but that’s a question the California Supreme Court is going to have to answer.

Q: MSNBC host Rachel Maddow reported that in regard to Prop 8, education level and income mattered more than race, yet there seems like there was an attempt to blame African Americans for its passage.
The numbers that people were talking about were very unreliable. There was this 70 percent figure [of African Americans who voted for Prop 8] that floated around, which is a very discredited figure. I think we want communities of color to be strong allies in this fight, not just for practical reasons, but for principle reasons as well because these are communities that know about fighting for equality and I think we have a lot to learn from them. It just wasn’t accurate that people started talking about somehow black and Latino voters were responsible. But I would even be hesitant to say uneducated voters were responsible for this, or even evangelical voters were responsible. I think that there’s a lot of people that we haven’t talked to enough yet, and that’s on us.

Q: What’s next in your fight to have Prop 8 overturned?
The parties are working furiously on their briefs. Once all the briefs have been submitted, the case will be scheduled for argument and it’ll be up to the court when to schedule the argument. My guess is that they would schedule the argument maybe sometime in March. After the case is argued, the court actually has to issue an opinion within 90 days, so it’s quite possible that we’ll have a decision in this case in June or maybe even earlier, which is pretty fast as lawsuits go.

Originally published Jan. 8, 2009

Originally published on January 8, 2009