June 26, 2013

2 lies behind the Prop 8 challenge

by Jesse Johnson

Since I posted this, the Supreme Court ruled that the defenders of Proposition 8 had no standing to appeal the ruling that the proposition was unconstitutional. The result is that Prop 8 is struck down, and same-sex marriage is legal in California, as of 7:30 am today.

prop 8 poster

Having lived in California during the passage of Proposition 8, and now in Washington DC during the amendment’s legal challenge, I have realized that most people—even most Christians—don’t understand what was at stake with this lawsuit. Many people simply don’t grasp the lies behind the challenge to Proposition 8.

The first lie: the challenge was about gay marriage. The truth is that it is about a Christian’s right to vote.

The second lie: Proposition 8 took away a right to gay marriage. The truth is, that right never (legally) existed in California.  

In 2000, California voters approved a law that defined marriage as between a man and a woman, while granting the state the ability to give all the benefits of marriage to couples in a same-sex domestic partnership. This was the everything but the word “marriage” approach to same-sex unions. When those partnerships were being debated in the legislature, even homosexual activists claimed that they did not want the word marriage. It was a religious term, they said, and one with which they wanted nothing to do.

Gavin NewsomBut in 2004, the mayor of San Francisco directed his county clerk to begin issuing marriage licenses to same sex couples. This office is non-elected, and the clerk complied with the mayor’s request, and began allowing homosexuals to marry. This lasted for five months, before the California Supreme Court stopped the process, and ruled that the previous licenses were invalid. The message to Californians was clear: government officials were going to push through same sex marriage unless we availed ourselves of the legal process to pass a constitutional amendment to stop it.

Then in 2008, ambiguity was cast aside when the State Supreme Court ruled that the 2000 law was unconstitutional, and that homosexuals had the right to same-sex marriages. This was the result of a lawsuit brought by those challenging the court’s earlier finding that what Newsome did was illegal. In other words, the County Clerk’s decision to issue same-sex marriage licenses (in an act latter declared illegal) is what led to this court case.

Stop and marvel at the absurdity of the process that got to this point. An unelected official bypassed state law to follow a politically motivated order from a mayor, and that unaccountable act compelled all California counties to honor those marriages, and in turn other states (states without a legally binding definition of marriage) to accept California marriages. The national debate on marriage was being decided by the actions of a county clerk!

It was five months later that Proposition 8 passed, which amended the state constitution to specify that marriage is a union between two partners of the opposite sex. The text of the Proposition simply says this: “Only marriage between a man and a woman is valid or recognized in California.” It was that amendment that was challenged in Federal Court.

There is much about the federal trial that left Christians feeling swindled. First, the state passed on its legal obligation to defend the law. Second, the case was assigned to an openly homosexual judge. Third, that judge ruled that individual counties could not defend proposition 8. That left nobody to do the defending.

California's Supreme Court

California’s Supreme Court

One group did step up, and with funding that they raised, along with an order from the California Supreme Court, they were allowed to defend the case. It was obvious from the trial that they were taking a risky approach—essentially they refused to offer any kind of substantial defense of Prop 8. The legal threshold required of them to have a result in their favor was to show that the amendment had a rational purpose–which is a fairly low bar, legally speaking. Yet they called almost no witnesses, and barely put on a show. Instead, their strategy was simply to state the obvious: it is rational to view marriage as exclusively between a man and a woman. Clearly, that defense did not go over well with the judge.

As a side note, throughout the trial, the LA Times ran lists of people who supported the Proposition 8 effort financially. When those people owned businesses, the Times put that information on there too. Soon LGBT groups began protesting those establishments, and those protests were (you guessed it) covered by the LA Times.

But that is not really the main point. The judges’ ruling essentially leads to the first lie about Proposition 8:

Christian voting rights:

In his ruling, the judge made clear that the motives of voters were what was on trial. Why would a voter want to confine marriage to heterosexuals? There could be no rational basis, the judge wrote, or at least none that was presented at trial. Instead, he said, the only reasonable assumption is that people voted to define marriage because of their religious beliefs [which is astoundingly ironic, in light of the fact that in the early 2000’s the homosexual movement itself said that marriage was a religious term, with which they wanted no part]. The judge went on to write that because there was a large Christian turnout at the election, and that “religion lies at the heart of” opposition to gay marriage, so that “fatally undermines” the Proposition 8 cause.

With that paragraph, the judge made this case was no longer about gay marriage, but about the Christian’s ability to participate in our legal process. Christians had their votes nullified simply because they voted with Christian convictions.

It is also noteworthy that Proposition 8 passed in the same election where President Obama handily defeated John McCain; in other words, a majority of Californians voted for President Obama, while also voting in favor of Proposition 8. But the judge was only interested in the motives of those voting in faovor Proposition 8.

Taking away marriage rights:

But that is not the only lie behind proposition 8. The second is one that has been often repeated, and was in fact the logic used by the 9th Circuit Court of Appeals in upholding the trial verdict invalidating Proposition 8. They said that California was unique, because they had given homosexuals the right to marry, and Proposition 8 took that away from them. In that light, the court argued, California has to allow gay marriages. Once they started, there is no rational basis to go back (and remember, that rational has now been defined as apart from any religious influence).

But this is simply not true. California had voted two times on the issue of gay marriage, and both times the election affirmed heterosexual unions as the only legal form of marriage. Remember, it was an unelected County Clerk that started issuing the marriage licenses, and those very licenses were invalidated by the state supreme court. It was a challenge to that which opened up the six month period between the State Supreme Court’s decision and Proposition 8 where these marriage were allowed. In other words, in no way did Proposition 8 take away rights from a group. It was an illegal act that led to a legal crisis, which led to the Proposition passing.

As I said earlier, I don’t know what today holds. If Proposition 8 is upheld, or sent back to California for a new trial (for lack of standing on behalf of those that defended it), it probably only delays the inevitable. If the court upholds the findings of the trial judge, it will be a sad day—not only for the concept that governments exist to check sin, rather than to promote it. But for the simple reason that a judge said that if Christians allow their religion to influence their voting, then their votes should not count. In many ways, this is simply the latest step in taking away a Christians’ ability to participate in the public square.

Jesse Johnson

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Jesse is the Teaching Pastor at Immanuel Bible Church in Springfield, VA. He also leads The Master's Seminary Washington DC location.
  • doreen


  • Jason Alligood

    Very clear article, Jesse. Thanks for the work you put in to presenting this. I plan on passing it on.

  • Heidi

    I appreciate the way you’ve explained this, allowing me to more fully understand what has truly taken place in California. We’re foolish to think for even a second that these situations won’t effect us on the other side of the country. Thank you for sharing your knowledge here.

  • gerald

    excellent explanation. Kudos. Chilling……

  • Scared of the NSA

    Perhaps it’s time for evangelical Christians to take marriage back as strictly an ecclesiastical matter. Speaking as a believer in the permanence view of marriage, I already know that the state definition of hetero marriage is a joke (“Till death do us part, or inconvenience, or disinterest, or ‘no fault’, etc…”) and I wonder if it would make sense to just make marriage for Christians what it once was, a contract established uniquely in a church and outside of State purview.

    • Would you say marriage is dependent upon the Church? I’m thinking about how the church came after the institution of marriage. I would go further and say Marriage as a institution should be outside the control of the State and Church to define it. What do you think?

  • Melissa Collins

    Having lived in California most of my life, I am embarrassed continually by this state that I once used to love deeply. While the beauty of God’s creation (and the weather here in San Diego) still holds me here, my values and morals are not represented here. These are tough times to be a follower of Christ but the Bible prophecies come true as followers of Christ are persecuted more blatantly as the days go by. We are called to not give up the fight regardless of things that are coming to fruition – but to stake claim to our victory in Him. I will continue to stand by my belief that a marriage is between a man and a woman, just as God designed. Thanks for the interesting, informative post Jesse!

  • Kirby Johnson

    I’m listening to a book called Compelling Interest about Roe v. Wade, and the parallels with this decision are conspicuous in that the legal defense team seems to not know what they’re doing. Truly the US is being judged if we cannot even find a defense team that can dunk the ball on these very low hoops. It is another sad day indeed.

  • John_D_11

    Fascinating article, Jesse. I’m not that surprised by the legalization or popularity of gay marriage in light of Romans 1. But I am shocked by the lies you uncovered regarding the legal process you outlined and the abandonment not just of biblical principles (that’s expected), but the abandonment of the constitution and Christian’s right to vote (that’s unexpected).

    I think you should consider sending this article to Marvin Olasky or someone at World magazine to have published.

  • gerald

    Sounds like the lies won. The decisions are in.

  • Matt Tarr

    Thank you Jesse! I was talking to someone this morning who said he heard on the radio that this also affects churches and their ability to file a 501c3 if they refuse to marry gay couples in light of this ruling. Do you know if that’s really the case? I tended not to think so, as long as the church has in their by-laws that they cannot marry gay couples because of their religious beliefs (in the Bible).

  • Pingback: Where the Prop 8 ruling leaves us: | the Cripplegate()

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  • Eva Biers

    this was so helpful for me. you did a great job summarizing what had been so confusing to me. thanks!

  • Jesse, I appreciate your clear thinking and Biblical discernment and I think this is the post I’ve read from you. Thank you.

  • Kenneth Leonard

    If you could show your readers where the constitution says the U.S. government exists to “check sin” or where the constitution prohibits same-sex marriage, THEN you’d have something relevant to contribute to a dialogue about marriage rights in our country.

    You said, “It was an illegal act that led to a legal crisis, which led to the Proposition passing.” This is a true statement. However, the original law which prohibited same-sex marriage was unconstitutional. Your article reminds me of Rosa Parks, who was famously arrested in 1955 for violating Alabama’s segregation laws. She broke the law, and her illegal act of civil disobedience helped spark the modern civil rights movement. Around the same time, the Supreme Court was also involved in the segregation debate, and issued a ruling in Brown v. Board of Education of Topeka (1954), striking down legislation that had been approved by voting majorities in Jim Crow states, as well as previous rulings by the Supreme Court (most notably Plessy v. Ferguson). When the Supreme Court ruled against racial segregation, they weren’t necessarily waging war on racists’ voting rights. They were just doing their job, which is interpreting the Constitution. When laws are unconstitutional, the courts are supposed to do what they just did with DOMA, and what they’ve done before with various other decisions.

    So, while people like you would prefer to go back to the “separate but equal” days of civil unions and partnerships, the Supreme Court has decided that people who are different than you are entitled to the same rights you enjoy. Remember, you have lost NOTHING when a same-sex couple chooses to get married (and many, many couples will do so as soon as they possibly can). Your marriage is still valid, and you may still enjoy your liberties in the exact same ways you always have.

    • Sweet. I’m glad someone made this argument, because I’ve been waiting for it for a while now. At issue here (or at least what I tried to bring out) is that this is not even about the right to marry (that was probably more so true in DOMA than Prop 8), but about how you define marriage. Who gets to define it? People? Judges? The dictionary? History? I agree that voting on civil rights is problematic. But the ruling in the Prop 8 case (which I have actually read) was not even about civil rights, as much as it was that if Christians vote from a religious perspective, their votes should not be taken into account.

      By the way, you can call same-sex marriages “equal” to marriages all you want, but they ARE NOT THE SAME THING. One has people of the same sex, one does not. So they are not EQUAL, thus the whole racial connection is not apt. A marriage is a marriage, regardless of the race of those involved, but not regardless of the gender.

      I’d encourage you to read these two posts–one by me: http://thecripplegate.com/where-the-prop-8-ruling-leaves-us/

      The other by a legal blogger on the Prop 8 trial:


      And finally this: http://www.nationalreview.com/bench-memos/352245/compare-and-contrast-ed-whelan

      Hopefully if you read those, you’ll get a slightly better understanding of where it is I”m coming from on this trial.

      Thanks for interacting here Kenneth.

  • Jim Aroyo

    The Bible is not our law. If this country ever becomes a theocracy, it deserves to fall.

    • Granted. And as the Prop 8 case makes obviously clear, the law is not our law either. The laws were followed, votes were cast, and then a judge ruled that if Christians vote motivated by their religion, then their votes should not count. So this case crosses the Bible off as our law, as well as democracy. So what’s left? That’s what I brought up on this post here: http://thecripplegate.com/where-the-prop-8-ruling-leaves-us/

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