Prop. 8 School Messages Figure in Ruling Against Measure

By Mark Walsh — August 04, 2010 1 min read
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Proponents of the 2008 California constitutional amendment that bars same-sex marriage played on fears that schools would be required to teach children that gay marriage was OK if the ballot inititiave was defeated, a federal judge concludes as part of his ruling Wednesday striking down the measure.

U.S. District Judge Vaughn R. Walker of San Francisco held that Proposition 8 violates the due-process and equal-protection clauses of the 14th Amendment to the U.S. Constitution.

“The Proposition 8 campaign relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian,” Judge Walker wrote in his 138-page opinion in Perry v. Schwarzenegger. “The reason children need to be protected from same-sex marriage was never articulated in official campaign advertisements. Nevertheless, the advertisements insinuated that learning about same-sex marriage could make a child gay or lesbian and that parents should dread having a gay or lesbian child.”

Judge Vaughn quoted two pro-Proposition 8 strategists who described in a magazine article after the measure won that focus groups and surveys led them to create campaign messages focusing on, in one of the strategist’s words, “how this new ‘fundamental right’ would be inculcated in young children through public schools.”

The judge also cited a pro-Prop. 8 campaign advertisement quoting a school-age girl saying, “At school today, I was told that I could marry a princess too.” In the ad, the girl’s mother displays an expression of horror.

Judge Vaughn rejected arguments from the Proposition 8 opponents that such messages were meant solely to raise concerns that students would be taught about same-sex marriage as early as 1st or 2nd grade.

“The evidence shows ... that Proposition 8 played on a fear that exposure to homosexuality would turn children into homosexuals and that parents should dread having children who are not heterosexual,” the judge wrote.

He ultimately concludes that Prop. 8 “fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.”

“Indeed,” the judge added, “the evidence shows Proposition 8 does nothing more than
enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.”

The decision is expected to be appealed.

A version of this news article first appeared in The School Law Blog.