Gay Marriage Ban Looks to Have Passed in California, but Is It Legal?

Hundreds of gay people and their allies at the Music Box in Hollywood on Election Night thundered their approval when states such as Pennsylvania and Ohio were called for Barack Obama. Like so many others around the world, gay people, anxious for change, felt the pendulum of history about to make a huge sweep in a progressive direction.

In between the election results and foot-stomping music, a steady stream of elected officials -- including new hero Jack O'Connell, California's superintendent of education, who appeared in a No on Prop. 8 ad condemning the "lies" promulgated by the Yes on 8 campaign -- promised to "fight for equality" even if Proposition 8 passed. But for most, that was unthinkable. How could the people of California in 2008 vote to eliminate the existing fundamental right of same-sex couples to marry and write that prohibition into the state constitution?

When the news networks announced that Obama would be the next president of the United States, and the first African-American president, the theater seemed to shake with the explosion of joy. The cheers were even louder when Obama mentioned gays in his acceptance speech.

But as the night wore on, the revelers became more and more somber as it appeared that Prop. 8 would pass and make same-sex couples an unwanted part of history, too. By morning, while the world rejoiced at the prospect of a new beginning, lesbian and gay couples cried in despair at the profound loss of equality.

By Wednesday morning, with 95 percent of the precincts tallied, passage of Prop. 8 looked assured with 52 percent of the vote and a 400,000-vote advantage. But No on Prop. 8 leaders refused to concede until all the votes were counted.

"The fundamental fact is, the issue in this election race is too close to call, and people's literal fundamental rights hang in the balance," said National Center for Lesbian Rights Executive Director Kate Kendell during a hastily called conference call.

Equality California Executive Director Geoff Kors told reporters that the uncounted absentee ballots are not the same as those filed early by older conservative voters.

"People who do absentee and just basically bring them in that day or mail them in the day before -- like me -- tend to be more progressive and more likely to be with us," Kors said. "And then there are kind of provisional ballots -- which happen to a lot of new voters -- which we know tend to be with us."

California Secretary of State Debra Bowen is expected to make an announcement about the uncounted ballots by Thursday afternoon.

Meanwhile, California county clerks stopped issuing marriage licenses to same-sex couples based on the semi-official results and a provision in the state constitution that says that, if approved by a majority of voters, any amendment or revision should take effect immediately.

Several lawsuits were immediately filed seeking an injunction and arguing the unconstitutionality of Prop. 8 to the California Supreme Court. Attorney Gloria Allred and her partner John West filed a suit in the high court on behalf of their clients Robin Tyler and Diane Olson, who were the first lesbian couple married in Los Angeles after same-sex marriage became legal.

"Prop. 8, if it passes, conflicts with the equal protection clause (in the California Constitution)," Allred said at an afternoon news conference in her Los Angeles office on Wednesday. "We will argue to the court that Prop. 8 is a disguised revision to the constitution which cannot be imposed by the ordinary amendment process, which only requires a simple majority. We believe that then the court must hold that California may not issue marriage licenses to non-gay couples because if it does, it would be violating the equal protection clause as straight couple would have more rights, by being allowed to marry, than gay couples."