You can't get there from here: the impact of California's Proposition 209 on same-sex marriage.

• Author: Buckmire, Ron
• Position: State Constitutional Commentary: An Interdisciplinary Examination of State Courts, State Constitutional Law, and State Constitutional Adjudication

On Tuesday, November 5, 1996 California voters amended their state constitution by approving Proposition 209, sometimes referred to as the California Civil Rights Initiative or CCRI. The vote tally was 54.6% - 45.4%, a margin of nearly 900,000 votes. Proposition 209's first clause reads:

(a) The state shall not discriminate against, or grant

preferential treatment to, any individual or group on the

basis of race, sex, color, ethnicity, or national origin in the

operation of public employment, public education, or public

contracting.(1)

The words "preference" or "discriminate" are not defined in the initiative. However, the polity was well aware that the intent of the ballot measure was to dismantle race-based and sex-based affirmative action in the State of California. This was due to the fact that the proposition was championed by Ward Connerly and California Governor Peter Wilson. Connerly is the Regent of the University of California who was instrumental in the elimination of the use of race and gender in admissions decisions at the University of California. He was also the official chairman of the California Civil Rights Initiative. Wilson used his opposition to affirmative action as the centerpiece of his abortive presidential campaign.

Prior to its passage, a loud and public multimedia debate on whether Proposition 209 increased or lessened protections against sex discrimination appeared on newspaper editorial pages, the Internet, television, and talk radio. Both opponents and proponents found legal scholars who supported their views on this question. The reason behind the intense debate was the realization that female voters make up a majority of California's voters and thus held the fate of the initiative in their hands. The crux of the debate was competing interpretations of clause (c) of the initiative:

(c) Nothing in this section shall be interpreted as prohibiting

bona fide qualifications based ok sex which are reasonably

necessary to the normal operation of public employment,

public education, or public contracting.(2)

A plurality of California law professors agreed with opponents of Proposition 209 that clause (c) explicitly could allow sex discrimination in particular areas. This previously was impermissible under the California Supreme Court decision in Sail'er Inn v. Kirby(3) which treats gender as a suspect classification meriting strict scrutiny.

Proponents of 209 argued that clause (c) was necessary to modify the...