Marriage Rights and Parental Rights: Parents, the State, and Proposition 8

Abstract:     
On November 4, 2008, 52% of Californians voted for Proposition 8, a ballot initiative amending the state constitution to eliminate same-sex marriage rights. In the weeks and months since the election, there have been many explanations for Proposition 8’s success, including the impact of Mormon money and minority homophobia. What has been neglected in the discussion is some analysis of the way in which the Yes on 8 campaign reframed the debate over same-sex marriage from an anti-discrimination/equal rights discourse to one that emphasized the threat of state imposition on individual rights, including parental rights. Revealing the way in which the campaign focused on the threat of state interference with parental rights offers a more nuanced account of Proposition 8’s success. It also says much about the legal and social construction of the family and our understanding of the relationship between parents and the state in ensuring the well-being of children. By tapping into embedded cultural and legal tropes about the family and about the relationship between parents and the state, the campaign also can be understood as a manifestation of family law’s characterizations of the family and the state.

Keywords: Proposition 8, gay marriage, same-sex marriage, California, family law, parental rights, individual rights, marriage rights

Accepted Paper Series