Proposition 8 Q and A

by HRC Staff

HRC understands that there are many questions regarding the vote to pass Prop 8 and write discrimination into California's constitution. This is an incredibly difficult time, to say the least, for the LGBT community and everyone who supports marriage equality. In addition to the pain caused by the results on November 4, there is, quite understandably, a great deal of uncertainty. The questions and answers below are designed to respond to this uncertainty, and provide information that, we hope, will be helpful.

One thing we do know is that our community is energized and engaged - perhaps more than ever before. We must harness this energy into productive means to further the fight for equality. A large part of this will depend on continuing to build a coalition of supporters who see both our pain and our determination, and are committed to standing side by side with us in this battle for equal rights for all.

The following Q&A is designed to answer many of the pressing questions related to the passage of Prop 8.

Q: What does Prop 8's passage means for lesbian and gay couples who married in California between June 16 and November 4, 2008?

A: The California Secretary of State, Debra Brown (as well as the Attorney General, Jerry Brown), has said that she does not believe Prop 8 retroactively invalidates these marriages, and LGBT groups agree. However, there has not been a final decision on this issue. Unfortunately, for now, we must wait and see what the California government decides to do.

Q: What legal recourse do we have?

A: The American Civil Liberties Union, Lambda Legal, and The National Center for Lesbian Rights filed a lawsuit in California claiming that Proposition 8 undoes the California constitution's core commitment to equality for everyone and that it impedes the court's essential role of securing equal protections for minorities. The lawsuit argues that a change of this magnitude needed the state legislature's approval (which was not sought) before going on the ballot. A wide range of groups and organizations have filed petitions supporting this case, including 44 members of the California Legislature, the City and County of San Francisco and the City of Los Angeles, the NAACP of California, the Mexican American Legal Defense and Educational Fund, California Women's Law Center and the California Council of Churches, just to name a few.

We urge the community to be patient while these organizations, including NCLR, which successfully litigated the In re Marriages case that originally recognized marriage equality in California last May, focus all of their resources on winning this case. We understand the urge to take further legal action, but implore the community to wait for the results of this case before beginning further litigation. It is important to remember that after eight years of judges being appointed by President Bush, the composition of our federal courts in particular does not bode well for the success of such actions. For more information, please see the joint advisory published by many LGBT organizations, including HRC, entitled "Make Change, Not Lawsuits," which although published before Prop 8, is still relevant.

Q: What are the next steps? What can be done to reverse Prop 8?

A: We are currently awaiting the outcome of the lawsuit filed by the ACLU, Lambda, and NCLR, which has the potential to invalidate Prop 8. If that suit is unsuccessful, the California Constitution could be amended to remove the language created by Prop 8 by following the same procedures for amendment that created it.

As we await this decision, supporters have mobilized through the country. Last weekend, marchers in all 50 states in Join the Impact rallies called not only for justice for LGBT families, but for an end to all the oppressions that hold our nation back and give the false impression that our differences are more profound than what we have in common.

Q: Is it true that the minority vote, specifically that of African Americans, was a significant factor in the passage of prop 8?

A: The African American vote did not cause Prop 8 to pass. However, some exit poll data indicates that support for Prop 8 in the African American community may have been higher than in many other demographics, and this demonstrates that the LGBT movement has significant work left to do in the African American community to build bridges to unite us, rather than divide. We must remember that we are all fighting for the same civil rights. There are also many prominent African American leaders who support marriage equality such as Julian Bond and John Lewis.

Q: Why isn't HRC, or another organization, trying to challenge the legality of the bans based on the U.S. Constitution?

A: There have been cases that claim laws favor or impose one set of religious beliefs over another, but they have not so far been successful. While to us, full supporters of equality, defending equal rights for the LGBT community under the First Amendment, or other provisions of the U.S. Constitution is logical, we must remember that not everyone sees equal rights as we do, particularly the judges President Bush has put in place over the past eight years.

We do believe that marriage recognition must occur on the federal level. President-elect Obama supports the repeal of the Defense of Marriage Act, which is one major hurdle. However, forcing this issue into the spotlight without sufficient support for success, and potentially having a Supreme Court decision against marriage equality, would be tragic for the equal rights movement.

Q: What about the separation of church and state?

A: Many people have expressed concerns over polling locations in churches. We are exploring the instances we have heard of where someone felt a polling location had posted inappropriate material or information designed to sway someone's vote. We take this very seriously and are in contact with allied organizations as well.

Q: Should we use civil disobedience, such as not paying our taxes, to protest this inequality?

A: The choice to engage in civil disobedience is a personal one. However, HRC does not endorse or condone any illegal activities. We encourage supporters to fully investigate the possible repercussions for any act of civil disobedience they are considering before making a decision.

Q: There has been a lot of publicity surrounding the support of churches, specifically the Mormon Church, for Prop 8 isn't that illegal?

A: A church, as a 501(c) (3), is prohibited from political campaign intervention on behalf of candidates. It is not prohibited from ballot measure work, which the IRS treats as lobbying activity (because it is essentially lobbying the general public). The amount that a church can spend on ballot measure work, or other lobbying activities, is, however, limited to an insubstantial part of their overall activities.

We ask that advocates of LGBT equality not paint the Mormon Church with a broad brush. There were, in fact, members within the Church who joined us against Prop 8. As leaders in the movement for equal rights, it is important to not vilify a whole religion for the bigotry and hate of some members.

Contact Us

To make a general inquiry, please visit our contact page. Members of the media can reach our press office at: (202) 572-8968 or email