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

In Best Interest of the Child, California Parental Rights Amendment, children criminals, children legal status, children's behaviour, Childrens Rights, Civil Rights, Divorce, Domestic Relations, Domestic Violence, due process rights, family court, Family Court Reform, Family Rights, fatherlessness, fathers rights, Marriage, motherlessness, mothers rights, National Parents Day, Non-custodial fathers, Non-custodial mothers, parental alienation, Parental Alienation Syndrome, Parental Kidnapping, Parental Relocation, Parentectomy, Rooker-Feldman Doctrine, Sociopath on June 25, 2009 at 3:12 pm

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

by Melissa E. Murray
University of California, Berkeley – School of Law
Stanford Journal of Civil Rights and Civil Liberties, Forthcoming


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

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