CA Court Case Challenges Prop 8, Anti-Gay Rights Measure

Amie Newman

Reproductive rights and gay rights are inextricably linked. Will the California Supreme Court's decision today to hear a case challenging Proposition 8 (the anti-gay marriage amendment) help unify activists even more?

A motion filed with the California Supreme Court to hear a same-sex marriage challenge to Proposition 8, an anti-gay marriage ballot measure passed this month that would amend the California constitution, has been granted.

However, a request for a "stay" of Prop 8 was denied essentially keeping the marriage ban in place until the case has been heard. Those California couples that were legally married prior to the passage of Prop 8 are stuck in what can only be imagined as a nightmarish limbo of being, for all purposes, forcibly divorced.

According to the Supreme Court order:

"The issues to be briefed and argued in these matters are as follows:

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(1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?

(2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution?

(3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?"

While gay rights and reproductive rights advocates have encircled each other’s movements for years, and there have certainly been many connections made between movements, the recent election may be responsible for a more in-depth examination of the ways in which these movements are critical to each other’s successes. 

While three anti-choice ballot measures were soundly defeated on November 4th, anti-gay rights measures around the country, most notably in California were passed. The disconnect among voters was immediately picked up in progressive circles. As Shira Saperstein wrote on Rewire recently,

Reproductive rights are about far more than abortion — they also encompass contraception, adoption, and intimate relationships, including marriage. The ability to manage our fertility through contraception and, when necessary, abortion, enables us to plan our families and to determine whether, when, and with whom to have children. Adoption, too, allows caring adults to become parents and form loving families. And marriage provides legal and social benefits that make it easier to care for one another and to raise children with the security and resources they need to thrive.

On the Huffington Post last week, Richard Burns asks why people don’t get the connection between reproductive rights and gay rights noting that it’s difficult, if not impossible, to have one without the other,

The interesting thing is that the constitutional amendments and legislation banning same-sex marriage effectively withhold elements of the above rights – to family, reproduction and sexuality – from lesbian, gay, bisexual and transgender (LGBT) people. Banning marriage, civil unions, domestic partnerships and even, as in the case of Virginia, contractual agreements that are deemed to replicate marriage rights, by definition limits our abilities to form families, as we cannot legally provide for and protect each other.

Saperstein makes the case that by framing these rights as central to the "core American values" we all hold close to our hearts we cannot possibly see LGBT rights and reproductive justice as anything but intimately linked:

These rights are indivisible, and defending them comes not only from a concern for women or for the GLBT community. Reproductive rights are about nothing less than the ability to chart one’s own course in life–to make decisions about love, sex, and family without government interference or discrimination. That ability is central to core American values of freedom, equality, and fairness. It is time for progressives to join together in support of a complete and comprehensive reproductive rights agenda that advances liberty and justice for all.

For more information, including letters from one of only five organizations urging the court not to accept cases challenging the proposition, visit the California Supreme Court’s web site. Despite the fact that the Kingdom of Heavens’ letter opposing a court challenge begins by telling the court that the organization is acting "on behalf of the Almighty Eternal Creator" the court chose to hear the case.

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