Associated Press/Photo by Mark Avery

Brad Pitt vs. Joe the Plumber

Campaign 2008 | Hollywood high finance couldn't prevent Main Street from passing marriage-protection initiatives in three states

Issue: "Obama," Nov. 15, 2008

SAN DIEGO-When the clock struck 8 p.m. on Nov. 4, Miles McPherson started surfing for election returns. Opting out of the official watch party for California's Proposition 8, the marriage-protection amendment he'd help to spearhead, McPherson, senior pastor of The Rock Church in San Diego, chose instead to stay home and surf televised and online voting data.

But as the clock ticked, news on Prop 8 rolled in at the speed of mud. After an hour or so, scattered reports emerged that the measure, which would re-ban gay marriage in California, had taken an early lead. But the margin was narrow and dicey, with only a slim sampling of precincts reporting.

At 11 p.m., McPherson went into his den, where he spent an hour alternating between prayer and checking the secretary of state's website. He laughs: "I'd pray for 10 minutes, then refresh the site, pray for 10 minutes, then refresh the site. I was praying those numbers up."

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At midnight, McPherson went to bed. But an hour later, he rolled over to pick up his ringing cell phone: "Hello?"

"We won! We won! We won!" The caller was Jim Garlow, senior pastor of Skyline Wesleyan Church, another key Prop 8 organizer. "We won! We won!"

"He said it, like, 10 times," McPherson told WORLD, chuckling.

But while Prop 8 supporters succeeded in banning same-sex marriage in California, their opponents aren't ready to give up yet. The day after the election, gay marriage backers filed three lawsuits challenging the measure's constitutionality.

The Lambda Legal Defense, the National Center for Lesbian Rights, and the American Civil Liberties Union filed a single suit. The counties of San Francisco, Santa Clara, and Los Angeles joined to file another. Attorney Gloria Allred filed a third suit on behalf of married lesbian clients.

"The initiative process was improperly used in an attempt to undo the constitution's core commitment to equality for everyone by eliminating a fundamental right from just one group-lesbian and gay Californians," Lambda said in a statement.

At their core, the suits argue that the Prop 8 amendment so fundamentally changes the basic structure of California law that it is a revision of the constitution rather than an amendment. Alliance Defense Fund senior counsel Glenn Lavy called the argument "farfetched. It takes some real legal gymnastics to make that argument with a straight face."

A similar argument crashed and burned in Oregon this summer when a state appeals court rejected a challenge to Oregon's 2004 marriage amendment. The court used previous California case law as the basis of its ruling.

California conservatives weren't the only winners on traditional marriage. In an election that pitched the country toward the "progressive," voters in three states issued strong statements on tradition. Florida's marriage amendment was arguably the toughest-and the toughest to pass. The measure defined marriage as between one man and one woman, but also banned same-sex equivalents, such as civil unions. Further, the measure had to pull a 60 percent voter share to win. It did, passing by 62 percent in a state that went Democratic in the presidential race.

Arizona also passed a marriage amendment-just two years after becoming the first state to defeat one. In 2006, voters there rejected as too broad a constitutional amendment that defined marriage along traditional lines, and also banned civil unions and domestic partnerships. This year, though, Arizonans voted in favor of Proposition 102, a streamlined amendment that stopped at defining marriage.

Still, it was bellwether California that generated national attention, with Prop 8 inspiring election night watch parties as far away as Virginia. The measure passed narrowly, by 52.2 percent with nearly 97 percent of precincts reporting. The victory brings to 30 the total number of states with similar constitutional amendments, and marks the first time voters have banned same-sex marriage in a state where it was already legal.

However briefly.

The California Supreme Court in May overturned California's Prop 22, a statutory initiative dating from 2000 that defined marriage as between one man and one woman. Subsequently, the court refused to stay its own ruling pending the outcome of Prop 8 in the November elections. That opened the way for homosexual marriage in the state, and an estimated 18,000 same-sex couples rushed to make wedding vows, including couples from out of state.

Prop 8's passage will likely hamper those who had hoped to take gay marriage from California and go national, Lavy said. The pre-Prop 8 legal strategy for advancing gay marriage nationally would have been to sue on behalf of out-of-state couples for recognition of their marriages in their home states. "It will be harder now for them to succeed in lawsuits in other states when the marriage licenses in question are no longer valid or recognized in California," Lavy said.


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