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Prop 8 backers, foes file suit over ballot language

by Seth Hemmelgarn

Bay Area Reporter

Tuesday August 5, 2008

Supporters and opponents of Proposition 8 both filed suits in Sacramento Superior Court Tuesday, July 29 over parts of the proposed constitutional amendment.

When the initiative entered circulation late last year, before it qualified for the November ballot, the title read, in part, "Limit on marriage." The summary said that the measure would amend the state constitution to provide that "only marriage between a man and a woman is valid or recognized in California."

The title, as displayed on the secretary of state's Web site for public inspection, has been changed by Attorney General Jerry Brown to say, "Eliminates rights of same-sex couples to marry."

The summary now begins, "Changes California constitution to eliminate the right of same-sex couples to marry," and then says, "Provides that only marriage between a man and a woman is valid or recognized in California."

Prop 8 supporters filed their lawsuit because, in part, "the ballot title and summary prepared by the attorney general differs radically from the circulating title and summary, swapping 'Limit on marriage' with 'Eliminates right of same-sex couples to marry,' so as to be extremely argumentative and create prejudice against the measure," according to their petition.

"At the end of the day, it should be the people of California - not the attorney general - who decides what their opinion of a ballot measure is," Prop 8 spokeswoman Jennifer Kerns wrote in an e-mail to the Bay Area Reporter.

Steve Smith, of the Dewey Square Group and a senior campaign consultant for the Vote No on 8 - Equality for All campaign, the statewide coalition leading efforts to defeat Prop 8, wrote in an e-mail to the B.A.R. that "we think the attorney general's title and summary is accurate."

"It's routine for us to write a new title and summary for the ballot to accurately reflect the measure on Election Day," said Gareth Lacy, spokesman for the attorney general's office. "We receive hundreds of proposals that will circulate for signatures. Very few of them actually make it on to the ballot, so those finalists always get a close second look."

The state Supreme Court's May 15 ruling came just a few weeks before the measure qualified for the November ballot.

Impact on children debated

Prop 8 opponents have filed suit over ballot arguments by supporters involving the potential impact on what is taught in schools, as well as supporters' argument that domestic partners and married couples are already treated equally.

The ballot arguments, which are subject to court approval, read as a heated exchange between supporters and opponents of the measure over whether the amendment's failure would impact schoolchildren, with the authors making liberal use of all-capital letters and italics.

"The narrow decision of the California Supreme Court isn't just about 'live and let live,'" Prop 8 supporters write in their argument. "In health education classes, state law requires teachers to instruct children as young as kindergarteners about marriage. ... If the gay marriage ruling is not overturned, teachers will be required to teach young children there is no difference between gay marriage and traditional marriage.

"We should not accept a court decision that results in public schools teaching our kids that gay marriage is okay. That is an issue for parents to discuss with their children according to their own values and beliefs. It shouldn't be forced on us against our will," the argument states.

However, referring to the possibility of such a requirement, Tina Jung, a spokeswoman for the California Department of Education said, "I just don't know where that's coming from." She added that it's "probably someone's opinion."

"Our legal division is looking into what impact Proposition 8 may have, if any, on our guidance to school districts," Jung said.

The state education code says, "For the purposes of this chapter, 'comprehensive health education programs' are defined as all educational programs offered in kindergarten and grades 1 to 12, inclusive, in the public school system" designed to ensure that students receive instruction to help them make decisions related to family health and other areas, such as "Family health and child development, including the legal and financial aspects and responsibilities of marriage and parenthood."

In their rebuttal, Prop 8 opponents urge voters not to be "tricked by scare tactics."

"Prop 8 doesn't have anything to do with schools," the rebuttal says. "There's not one word in 8 about education ... No child can be forced, against the will of their parents, to be taught anything about health and family issues. California law prohibits it."

Fiscal impact

Another change to the summary is the fiscal impact Prop 8 would have on the state.

The summary now reads the fiscal impact would likely be that over the next few years, "potential revenue loss, mainly sales taxes, totaling in the several tens of millions of dollars, to state and local governments. In the long run, likely little fiscal impact on state and local governments."

That part of the statement is based on an analysis by the state's legislative analyst. Materials accompanying the title and summary explain that the validity of same-sex marriages would likely "result in increased revenue, primarily sales tax revenue, to state and local governments" as a result of consumer spending on weddings by same-sex couples in the state and those who visit California from out of state to wed.

The legislative analyst found that "By specifying that marriage between individuals of the same sex is not valid or recognized," that potential revenue could be lost.

Prop 8 supporters did not challenge the analysis in their petition.

San Francisco City Attorney Dennis Herrera, who represented the city and county as a lead plaintiff in the Supreme Court case that led to the May 15 decision that same-sex couples have the right to marry in the state, announced this week that he also intends to file a brief in the threatened lawsuit.

"Marriage equality foes are playing hide-the-ball with voters, obscuring the truth that Prop 8 would eliminate a constitutional right," Herrera said in a statement. "The attorney general has the same ethical duty I do to describe the legal effect of ballot measures fully and in a manner that accurately reflects the state of the law. With their threatened lawsuit, marriage equality opponents would have the state's chief legal officer do their political dirty work. If they want to lie to voters about their discriminatory intent - and it's clear they do - they should leave that to their campaign, and keep it out of the courts."

Opposite-sex support

The ballot argument against Prop 8 was submitted by an opposite sex married couple, Samuel and Julia Miller Thoron.

Samuel Thoron, a former President of Parents, Families and Friends of Lesbians and Gays, wrote about how he and Julia, his wife of 46 years, have raised three children - two sons and a lesbian daughter.

"All we have ever wanted for our daughter is that she be treated with the same dignity and respect as her brothers - with the same freedoms and responsibilities as every other Californian," Thoron wrote.

"My wife and I never treated our children differently, we never loved them any differently, and now the law doesn't treat them differently, either," he wrote. "... Please join us in voting no on Prop 8."

Thoron, 69, who lives in San Francisco, told the B.A.R. that "we have to make sure everybody we come into contact with is persuaded to be with us," in defeating Prop 8, but he's confident "we're gonna beat it back."

Thoron, who said he was national president of PFLAG from 2002 to 2006, also said he's a member of the Vote No on 8 campaign committee, and that he was chosen to write the argument because, "I think as a group that we all felt that it was important to find someone who would articulate the voice of fairness across community boundaries."

Liz Thoron, 37, the lesbian daughter that Thoron wrote about, lives in Oakland. She said she has a partner, though they're not sure if they'll get married.

"I am so proud of my parents for what they do," Thoron told the B.A.R.

"They're out there on the front lines, and ... I hope the ballot measure goes down in flames," she said.

To view the ballot information, visit

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