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Prop 8 Future & Court Case

Here's an article from Lambda Legal on the next steps in the Prop 8 case.  Sounds like a pretty decent argument to me...but I am of course biased. 

Legal Groups File Lawsuit Challenging Proposition 8, Should It Pass

Legal Papers Claim Initiative Procedure Cannot Be Used To Undermine the Constitution's Core Commitment To Equality For Everyone

SAN FRANCISCO — The American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights filed a writ petition before the California Supreme Court today urging the court to invalidate Proposition 8 if it passes. The petition charges that Proposition 8 is invalid because the initiative process was improperly used in an attempt to undo the constitution's core commitment to equality for everyone by eliminating a fundamental right from just one group — lesbian and gay Californians. Proposition 8 also improperly attempts to prevent the courts from exercising their essential constitutional role of protecting the equal protection rights of minorities. According to the California Constitution, such radical changes to the organizing principles of state government cannot be made by simple majority vote through the initiative process, but instead must, at a minimum, go through the state legislature first.

The California Constitution itself sets out two ways to alter the document that sets the most basic rules about how state government works. Through the initiative process, voters can make relatively small changes to the constitution. But any measure that would change the underlying principles of the constitution must first be approved by the legislature before being submitted to the voters. That didn't happen with Proposition 8, and that's why it's invalid.

"If the voters approved an initiative that took the right to free speech away from women, but not from men, everyone would agree that such a measure conflicts with the basic ideals of equality enshrined in our constitution. Proposition 8 suffers from the same flaw — it removes a protected constitutional right — here, the right to marry — not from all Californians, but just from one group of us," said Jenny Pizer, Senior Counsel with Lambda Legal. "That's too big a change in the principles of our constitution to be made just by a bare majority of voters."

"A major purpose of the constitution is to protect minorities from majorities. Because changing that principle is a fundamental change to the organizing principles of the constitution itself, only the legislature can initiate such revisions to the constitution," added Elizabeth Gill, a staff attorney with the ACLU of Northern California.

The lawsuit was filed today in the California Supreme Court on behalf of Equality California and 6 same-sex couples who did not marry before Tuesday's election but would like to be able to marry now.

The groups filed a writ petition in the California Supreme Court before the elections presenting similar arguments because they believed the initiative should not have appeared on the ballot, but the court dismissed that petition without addressing its merits. That earlier order is not precedent here.

"Historically, courts are reluctant to get involved in disputes if they can avoid doing so," said Shannon Minter, Legal Director of NCLR. "It is not uncommon for the court to wait to see what happens at the polls before considering these legal arguments. However, now that Prop 8 may pass, the courts will have to weigh in and we believe they will agree that Prop 8 should never have been on the ballot in the first place."

This would not be the first time the court has struck down an improper voter initiative. In 1990, the court stuck down an initiative that would have added a provision to the California Constitution stating that the "Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States." That measure was invalid because it improperly attempted to strip California's courts of their role as independent interpreters of the state's constitution.

In a statement issued earlier today, the groups stated their conviction, which is shared by the California Attorney General, that the state will continue to honor the marriages of the 18,000 lesbian and gay couples who have already married in California. A copy of the statement as well as the writ petition filed today is available a www.aclu.org/lgbt, www.lambdalegal.org, and www.nclrights.org.

In addition to the ACLU, Lambda Legal and NCLR, the legal team bringing the writ also includes the Law Office of David C. Codell; Munger Tolles & Olson, LLP; and Orrick, Herrington & Sutcliffe, LLP.



The National Center for Lesbian Rights is a national legal organization committed to advancing the civil and human rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education. www.nclrights.org

Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV through impact litigation, education and public policy work. www.lambdalegal.org

Contact: Jason Howe, Senior Public Information Officer; Office: 213-382-7600 ext.247; Email: jhowe@lambdalegal.org

The American Civil Liberties Union is America's foremost advocate of individual rights. It fights discrimination and moves public opinion on LGBT rights through the courts, legislatures and public education. www.aclu.org

Contact: Laura Saponara, Communications Director; Office: 415-621-2493; Email: lsapanora@aclunc.org

Founded in 1998, Equality California celebrates its 10th anniversary in 2008, commemorating a decade of building a state of equality in California. EQCA is a nonprofit, nonpartisan, grassroots-based, statewide advocacy organization whose mission is to achieve equality and civil rights of all lesbian, gay, bisexual and transgender (LGBT) Californians. www.eqca.org


( 2 comments — Leave a comment )
Nov. 7th, 2008 03:35 pm (UTC)
thanks for posting this. i knew there was a lawsuit waiting in the wings. i can't imagine any court finding against this.
Nov. 7th, 2008 04:34 pm (UTC)
I read an article in the paper today about it. Some legal scholar from UCLA or UC Santa Monica or something said the lawsuit is a long shot. Said the Supreme Court has only once ever overturned an initiative or part of an initiative and thta was when one passed making sweeping changes to the CA Constitution changing it so that it matched the US Const. Bill of Rights.

Others are saying that the court has aleady ruled that it is a right under the Constitution that may be enough precedent to invalidate the initiative.

Still others think it's going back on the ballot in 2010 and it will likely get overturned. I looked at the numbers this morning and statistically the only reason it passed was a high turnout of African American and latino voters. A decrease in the numbers of voters in either of those groups means it gets overturned. And if Obama is not on the ticket, a substantial voter turnout decrease in minority groups is expected.

So, we shall see. Lots of potential outcomes here.

I think we should lobby to end state sponsored marriage altogether and force anyone who wants a state sponsored marriage to be domestic partners and see how screwed they feel. Allow marriages in churches and religion only and all state recognition of relationships be done through domestic partner law.
( 2 comments — Leave a comment )

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