While writing my last post, No to Proposition 8, I was pretty sure that I would be writing a, "what do we do now that prop 8 passed?" post this week. It is a bit disheartening that in addition to the California ballot initiative for a constitutional amendment defining marriage passing, similar ballot initiatives passed in Arizona and Florida. This means there are now 29 states with amendments to their constitutions which define marriage as one man to one woman.

And some of those amendments, such as the one which just passed in Florida, also include language to exclude the possibility for civil unions or domestic partnerships. What makes California different from the other 28 states with constitutional amendments, is that gay California citizens had the right to marry, and now it is being eliminated.

Though victory for those on the "NO" side in California seems unlikely, the fight is not over just yet. The NO on Prop 8 group is not admitting defeat just yet. The vote is close, favoring yes by 400,000 votes. The No on Prop8 group is waiting to hear from the Secretary of State on Thursday, about how many ballots are left to be counted and where they are from, before they concede. 400,000 may seem like a lot, until you consider that that's 400,000 out of 10 million votes tallied, and it's estimated there are 3-4 million absentee and provisional ballots yet to be counted. I would imagine though, that unless the vast majority of those ballots came from the larger coastal cities, the lead won't change too much.

In addition to holding out for all the ballots being counted, lawsuits have been filed to challenge Prop 8. The the core argument of these lawsuits is that the ballot initiative was actually a constitutional revision and not an amendment, because it altered the equal protection guarantee. Constitutional revisions must first be passed by the state legislature before they can be put on the ballot. If this holds up, then the ballot initiative was illegal and should be thrown out.

According to the California Constitution, such radical changes to the organizing principles of state government cannot be made by simple majority vote through the initiative process, but instead must, at a minimum, go through the state legislature first.
-from ACLU Legal Groups File Lawsuit Challenging Proposition 8, Should it Pass

Three lawsuits have already been filed citing the constitutional revision argument: one by the ACLU, the national Center for Lesbian Rights, and lambda legal; one by Santa Clara county, Los Angeles, and San Fransisco; and one by lawyer Gloria Allred on behalf of a lesbian couple. Two of the suits ask for Proposition 8 to be blocked from taking effect while the cases are pending. The groups are also asking that the marriages of the now nearly 18,000 couples remain valid. Gay rights groups have also asked that supporters for No on Prop 8 keep the fight within the state of California and not file suit in the federal courts, fearing a loss at the federal level could set the fight back decades. You can read more about this at The LA Times.

Now it seems that the fight is going back in the hands of the California state supreme court. I know there are many who supported Prop 8 who will cry foul. They will claim that the will of the people has spoken. But the reason our government isn't run purely by majority rule, is precisely so the tyranny of the majority doesn't trample the rights of the minority. And just because there there is a majority, does not mean that what the majority wishes for is right or fair.

Some reactions from around the web:

Professor What If writes

Yet, when I lamented with my daughter on the way home from the school pick up today about what looks like will be a win for Prop 8, she reminded me "But mom, remember what Obama said last night? He said rich or poor, gay or straight, married or not, we are all equal. Maybe he will make marriage something for everybody as president." Ok, so she got the quote a bit muddled, but she certainly got the message straight. And I, along with her, hope we will see A FEDERAL LAW passed during Obama's presidency THAT SUPPORTS MARRIAGE EQUALITY not just for "the straighties," but for everyone.

Lori form Hahn at Home writes

And it was all done behind the veil of a religious belief that by the nature of our very principles of freedom, should never have been allowed standing. My community has lost the fight this round and it may be years before change is effected. It's disheartening, having found passion and purpose for a cause that seems the only just course and to have it all decided by a lot of outside religious money and a mere 52% of California voters. Tomorrow is another day and I will continue the fight. But I do not rise up and take arms. I rise up and use words. And, I am allowed to do so.

Sinclair of Sugarbutch Chronicles writes

I've seen some posts around today already that say having Obama in office we are poised for a Federal lift on the ban on gay marriage, but honestly I don't know if I believe that. Of course I'd like to think so, sure, but then there's DOMA, and "37 states have their own Defense of Marriage Acts [and] ... 27 states have constitutional amendments." (source.)

Make that 30, as of November 2008: Arizona, Florida, California.

Times like these I wish I knew more about politics, and history. How can we lift these constitutional amendments out of the states? Do the voters have to vote again? Who can overturn DOMA at the Federal level? Do we need it to go through the courts, or through voting? Do we need certain Supreme Court members in order to have these things overturned? How do we get a Federal constitutional amendment that protects the rights of minorities?

Dorothy Snarker of Dorothy Surrenders writes

Yesterday, amid the celebration and excitement, came a painful reminder that progress is often imperfect. As I watched Obama win, I also watched California lose. Proposition 8, the initiative that would write discrimination into my state's constitution and take away the legal right that gays and lesbians now have to marry just like every other Californian seems on its way to victory. So as my heart bursts, it also breaks. Two steps forward, one step back.

Christie Keith from Daily Kos writes

I still can't believe that millions of total strangers who have never so much as laid eyes on me had the right to vote on my rights and equality at all, let alone that they voted against them. If this was, in fact, an unconstitutional proposition, it means they did not have that right. It won't change the fact that they voted how they did, but it will take some of the pain away.

It's too bad there weren't enough votes opposing Prop 8 to kill this thing on November 4. I think if this gets reversed by the courts again, it's going to be a tough pill to swallow for the Prop 8 supporters. I wish I could say that I was surprised by how the vote turned out in California, but really I'm not. Were you?