Background
The traditional and predominant legal stance in most of the 50 states is that marriage, as legally defined, can be viewed only as a legally recognized union of one man and one woman. That is, it cannot be defined as a union of same-sex partners, or even as a union of unmarried opposite-sex partners. There are differing views, mainly among academics, as to when same-sex unions were first historically prohibited and whether same-sex unions were actually prohibited by the force of law until relatively recent times. However, the idea that the prohibition of same-sex unions has deep and longstanding social and legal roots is commonly used in legal arguments as a basis for formulating or maintaining restrictions on same-sex marriage.
The 1986 United States Supreme Court majority opinion in Bowers v. Hardwick (470 US 186), which was authored by the late Justice Byron White (1917-2002), was based, in part, on the proposition that "proscriptions against [consensual sodomy] have ancient roots" dating back to common law and to the laws of the original 13 states when they ratified the Bill of Rights. 
The 2004 majority opinion overturning Bowers in Lawrence v. Texas (539 US 558), written by Justice Anthony Kennedy, noted that "there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter .... The absence of legal prohibitions focusing on homosexual conduct may be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century." However, Justice Antonin Scalia's dissent warned that nobody should believe that the Lawrence decision would not lead to "judicial imposition of homosexual marriage," given that the ruling "dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned."
Since same-sex marriage moved to the forefront of the national debate as an issue in the past several years, many states have passed laws that legally enshrine bans of same-sex unions, either as statutes or as amendments to a particular state's constitution. Typical language for these same-sex marriage bans is found in Ohio's constitution, which formalized a ban on same-sex marriage in 2004: "Only a union between one man and one woman may be marriage valid in or recognized by this state or its political subdivisions. This state or its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, signficance or effect of marriage."
An alternative view, with roots in the civil rights movement and related political activism of the 1960s, takes the position that marriage is a body of rights which should be extended, as a matter of fairness and equality, to couples who do not fit the one man/one woman definition. Many in the gay rights movement have made the right to marry a key position in their campaign for equal rights under the law. A compromise position is the the concept of domestic partnership or civil union, in which all or most of the legal rights of marriage are extended to same-sex couples, but not the name "marriage" itself. In practice, however, many laws that ban same-sex marriages also eradicate any arrangements that mimic or resemble same-sex marriage, including civil unions, domestic partnerships, and, in some interpretations of such laws, even the right of one partner to visit the other in cases of hospitalization.
National Challenges to Same-Sex Marriage Bans
In May 1993, the Hawaii State Supreme Court sent back for review to a lower court the case Baehr v. Lewin, which involved three gay couples who sued the State Department of Health for not issuing same-sex marriage licenses. The ruling was 3-1 in favor of sending the case back to the lower court. The decision stated that "there is no fundamental right to marriage for same-sex couples under article I, section 6 of the Hawaii Constitution," but held that there was an open question as to whether the State Health Department's prohibitions against issuing same-sex marriage licenses violated the state constitution's equal protection clause, contending that "the DOH's refusal to allow [plaintiffs] to marry on the basis that they are members of the same sex deprives them of access to a multiplicity of rights and benefits that are contingent upon that status." As John D'Emilio later wrote, "This was the first time in U.S. history that a court came remotely close to approving 'gay marriages,' and it cracked open a nationwide debate that continues today."
![Polling trends in same-sex marriage [Los Angeles Times graphic]](Images/gmtrend.gif "Polling trends in same-sex marriage [Los Angeles Times graphic]")
Partly in response to the Hawaii ruling, Congress weighed in with the Defense of Marriage Act (Pub. L. No. 104-199, 110 Stat. 2419), denying federal recognition to same-sex marriages. The bill was passed on a 342-67 vote in the House and an 85-14 vote in the Senate, and was signed into law by President Bill Clinton (who was under pressure from a Republican-majority Congress and in his re-election campaign against Bob Dole) on September 20, 1996, with the statement, "I have long opposed governmental recognition of same-gender marriages and this legislation is consistent with that position. The Act confirms the right of each state to determine its own policy with respect to same gender marriage and clarifies for purposes of federal law the operative meaning of the terms 'marriage' and 'spouse.' This legislation does not reach beyond those two provisions. It has no effect on any current federal, state or local anti-discrimination law and does not constrain the right of Congress or any state or locality to enact anti-discrimination laws." What Clinton's statement did not note, however, was that DOMA has the effect of denying same-sex couples any rights and obligations provided by federal law to married couples, including those related to inheritance, Social Security benefits, and joint tax filing.
In December 1999 the Vermont Supreme Court ordered the state to extend the legal benefits of marriage to same-sex couples (Baker v. State of Vermont), based on the Common Benefits Clause of the Vermont Constiution, and in 2000 the Vermont legislature created the status of "civil union" to meet the court's mandate. In 2003 Ontario's high court ordered the Canadian province to allow same-sex couples to marry (Halpern v. Attorney General). In November 2003, the Massachusetts Supreme Judicial Court ruled, in Goodridge v. Department of Health, that same-sex couples could not be excluded from the benefits of marriage under the Massachusetts constitution. In February 2004, the court ruled further, in response to an inquiry from the State Senate, that the compromise of legally permitting same-sex civil unions "with all 'benefits, protections, rights and responsibilities' of marriage" would not pass constitutional muster. On May 17, 2004, the Commonwealth of Massachusetts became the first state in the union to legally sanction same-sex marriage.
A total of 39 states, including California, have passed their own "defense of marriage" or "marriage protection" statutes. Other than Massachusetts, the remaining states either have constitutional amendments that define marriage or have other legal statements in place, such as attorney general's opinions, to that effect. Although Vermont, for example, allows civil unions, it has a statute (Title 15, §8) that states, "Marriage is the legally recognized union of one man and one woman." In May 2003, Marilyn Musgrave (R-Colorado) introduced the Federal Marriage Amendment (H.J. Res. 56), a proposed amendment to the U.S. Constitution to ban gay marriage, but on July 14, 2004, the proposed amendment failed to clear the U.S. Senate. Those who oppose gay marriage have continued to push for a constitutional amendment. President George W. Bush made his opposition to same-sex marriage a keystone of his 2004 re-election campaign against John Kerry. Kerry backed proposals that would ban same-sex marriage in his home state and other states, although he was one of 14 senators who voted against DOMA in 1996.
On October 10, 2008, Connecticut's Supreme Court (in the case Kerrigan v. Commissioner of Public Health et al.) became the third in the Union to declare that existing state law prohibiting same-sex marriage was unconstitutional. As in the earlier cases of California and Massachusetts, the ruling of the court was in favor of the declaration of unconstitutionality by only one vote.
Those who see same-sex marriage as a civil rights issue take the view that the legalization of same-sex marriage is part of an inevitable process of extending rights to disadvantaged groups. Those who oppose same-sex marriage contend that gay people are not a disadvantaged group under accepted legal definitions, and are not entitled to special treatment. Opponents see the legalization of same-sex marriage as an attack on the family and the social order, and cast the issue in moral and religious terms.
California Developments
History Prior to 2008
Efforts to legalize same-sex marriage in California, and efforts to prevent legalization, have a lengthy and involved history. See here for more details on that prior history.
Television Spots for and against Proposition 8
These television advertisements (YouTube embeds) are funded and produced by the political committees in favor of and in opposition to Proposition 8. Their inclusion here is for informational purposes only and is in no way meant to advocate one side or the other of the debate.
Yes on Proposition 8
No on Proposition 8