ADF Senior Counsel Joe Infranco writes:
One intriguing question in the Perry arguments was whether voters had done something wrong in "taking away" a briefly established scheme of "marriage" for persons engaged in homosexual behavior. To give some context to this line of questioning, the court was focusing on a brief window of approximately four months between the time the California Supreme Court (CSC) imposed same sex "marriage" and the effective date of voter-enacted Proposition 8, an amendment to the state constitution that restored the definition of marriage in California. Since some same-sex couples were allowed to "marry" during this time, the argument claims the mean-spirited voters obviously intended to take away this "right." In other words, the voters knew it existed, didn't like it, and acted accordingly. Plaintiffs' lawyers even cited the ballot language as further proof of voter meanness: the ballot summary read "eliminates right of same-sex couples to marry."
The problem is that the claim holds no water. First, the ballot process was started well before the state high court decision redefining marriage. The initiative went through a laborious process of organizational steps, culminating in collecting over 1.1 million signatures on petitions. In fact, those 1.1 million signatures were submitted Apr. 24, 2008 - prior to the CSC May 15, 2008 decision. It's clear the people pursuing the amendment were concerned with the definition of marriage, and not "taking away rights" that did not even exist at the time the effort began. When the CSC issued its decision, the proponents of Prop 8 immediately requested that the effective date be stayed a few months until after the election, to avoid exactly this situation. The court refused, in a 4-3 vote, and pushed for the earliest possible effective date. Oh, and yes - neither the governor nor the legislature asked the court to delay the effective date; all branches of state government apparently wanted marriage redefined, and wanted it done quickly, regardless of the amendment pending on the ballot.