California Legal Action Against Prop 8

[PalJoey]

Posted: 11/10/08 at 11:30am

Here's the press release from the American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights. There's a link to the actual writ at the link at the bottom.

And the Wall Street Journal blog below that has an excellent interview with a USC constitutional scholar who explains how the proposition may have been illegal: Amendments can be put on the ballot by a show of signatures, but REVISIONS to the State Constitution must be approved by 2/3 of the State Legislature before going to referendum.

===

FOR IMMEDIATE RELEASE | November 5, 2008
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, CA, November 5, 200—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. Prop 8 passed through the initiative process. However, 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, a staff attorney 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 below.

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.

[PalJoey]

Posted: 11/10/08 at 11:34am

Why wasn’t all this figured out prior to election day?

There’s really no process by which a determination is made before the election. When the petition is submitted to the attorney general and secretary of state, it doesn’t get reviewed on whether or not it’s a revision. The signatures get examined and the summary of the proposed change is reviewed for accuracy.

These post-election “writs” were filed with the California Supreme Court. Challenges on these grounds — this “revision or amendment” issue — don’t need to go through lower courts first?

No. The California Supreme Court has wide latitude to hear issues directly, especially when the issues concern the state constitution.

Were any other issues raised in the suits?

Yes. A same-sex couple that was married before the election made another argument. Remember, the California Supreme Court in May ruled that bans on same-sex marriage were not allowed under the state’s constitution. [That ruling prompted Proposition 8.] In that ruling, the Supreme Court essentially said two things: that same-sex couples had a fundamental right to marry, and that the underlying law violated the state’s equal protection clause.

The suit filed Wednesday argues that while Proposition 8 squarely addressed the marriage half of the Supreme Court’s ruling, it didn’t address the equal-protection half. In other words, the couple argues that the state constitution is now in conflict with itself — part of it says that same-sex marriage is flatly illegal, and the Supreme Court has interpreted another part to say that bans on same-sex marriage violate the state’s equal protection clause.

And a constitution can’t be in conflict with itself?

Right. There’s a common principle in constitutional jurisprudence called “harmonization,” which says that no part of a constitution can conflict with any other.
Unpacking the Challenges to Prop. 8: A Q&A With USC’s David Cruz

[best12bars]

Posted: 11/10/08 at 11:45am

That ought to do the trick.

Honestly, I can't imagine the Supreme Court will uphold the proposition, for these very reasons.

All those Mormon dollars spent in vain! Such a shame, all around.

AND... if it doesn't do the trick (for some sleazy reason), there are many legal fights and challenges ahead, so look out!

The nice thing would be if the Supreme Court shoots it down now, it won't keep popping up as a new proposition initiative every 2-4 years. To think we could (and might) vote on this at every single election is exhausting.

Have Roxy stick a fork in it. It's done!

[PalJoey]

Posted: 11/11/08 at 12:06am

The brief was filed this afternoon and is up on the Court website:
Petition for Writ of Mandate

[Phyllis Rogers Stone]

Posted: 11/11/08 at 12:09am

If the Supreme Court DOES rule it unconstitutional, does that stop it from ever being challenged again? Even - and this isn't me being a bitch, it's asking a logical question - if it is overturned and the marriages remain legal, and if, god forbid, all gay people in California can get married, can someone take it back to the Supreme Court?

[YouWantitWhen????]

Posted: 11/11/08 at 1:08am

I was talking to my mom tonight about the issue, and though she voted No on 8, she still does not understand why civil unions are not the same as marriage.

I went to some websites, and started explaining what the differences are legally, in terms of federal and state benefits, treatment in different states (other than the state of the civil union) as well as tax and SS issues.

I think it would be helpful for those who are under the mistaken impression that civil unions = marriage to clearly and specifically point out the differences, and how they are not in fact the same.

I am sure something like this already exists. If anyone has a comprehensive listing that I could forward on to those with doubts, I would greatly appreciated.

[jrb_actor]

Posted: 11/11/08 at 1:13am

But even if they were EXACTLY the same, separate is never equal. It's one of the principles of the 14th Amendment.

There is no reason we can't call it the same word for straight people and gay people. None.

People who were against interracial marriage were just as offended. Either because of their religious beliefs or their hate.

[YouWantitWhen????]

Posted: 11/11/08 at 1:30am

Jerby, I agree with you. But there are many people who believe, on some level, that the word marriage means a union between man and a woman. Not all of these people are terrible or evil - they just see the world through a very different lens.

But, when they compare that vague belief to outright discrimination, and fact that civil unions do not provide the same legal protection as marriage, they are willing to think with their heads and not their hearts.

Whatever it takes to get someone there it takes. If that means spelling out how separate is not equal under the law right now, then that is what it takes.

I have spoken with plenty of friends who have said to me "aren't civil unions enough" - and I have said no, and explained why. Not only because the word marriage means something special - and the act of marrying someone has deep personal significance to a couple, but because the rights granted to married couples differ from those granted to civil unions.

Some people are not ready to ignore their beliefs about marriage in a vacuum (whether fair or not), but are willing to do so if they are shown that a civil union does not in fact grant the same legal rights as a marriage.

It may not get them there in the way you like, but as long as it gets them there, acceptance, rather than just tolerance, will come. You should not have to wait for acceptance, but unfortunately, some people are not there yet.

[PalJoey]

Posted: 11/11/08 at 7:42am

can someone take it back to the Supreme Court?

The Supreme Court decides which cases it will hear and which it will not. It wouldn't hear a case a second time.

That's what makes it Supreme.

[best12bars]

Posted: 11/11/08 at 9:32am

We could use the same argument in the '60s and say, "Black people have their own drinking fountain. Why aren't they happy with that?"

Aside from the fact that "separate but equal" isn't "equal"...

The issue is that marriage is two different things. One is religious, and one is legal.

Religiously speaking, many people feel that marriage is between a man and a woman. That's what they believe. We're not voting to change their Bibles or FORCE anyone to marry same-sex couples in their churches.

We're talking about the LEGAL rights of marriage. And the LEGAL definition of marriage. And those LEGAL rights should be available to all citizens. So said the Supreme Court of California.

But the people of California, the ones who supported Prop 8, thought they were voting on the religious issue. All of those ads targeting minorities and working families were very clearly appealing to their traditional RELIGIOUS values. They were very clearly supported by churches and religious organizations, too.

That's where the "No on 8" campaign failed. (Aside from the fact that it was pitiful and overly-confident, all around.) They failed to make it clear that we weren't voting to change their religions or their religious beliefs. We were voting to assure legal rights of marriage to all citizens, REGARDLESS of their religions or religious beliefs.

I still think that a vote like this to either protect or deny the rights of a minority group should NEVER have been put to a "simple majority" vote by the public.

Hell, the "simple majority" of this (often backwards) country would probably vote to make abortion illegal again and reinstitute slavery. Or take away women's votes.

That's why all of our citizens are protected every day by the government. To ensure equal rights for all... not just the "simple" majority.

Updated On: 11/11/08 at 09:32 AM

[PalJoey]

Posted: 11/11/08 at 10:02am

My new mantra: YOUR freedom of religion gives you the right to make decisions about YOUR marriage and the marriages of other people of YOUR religion. It does NOT give you the right to make decisions about MY marriage.

[Phyllis Rogers Stone]

Posted: 11/11/08 at 10:34am

The Supreme Court decides which cases it will hear and which it will not. It wouldn't hear a case a second time.

That's what makes it Supreme.

I get that much, but when does it end? The Supreme Court heard Roe V Wade almost 40 years ago, and there is STILL backlash against that, and the movement to get it "overturned."

I guess what I'm wondering is - and I realize I'm way jumping the gun here - even if marriage grants were granted to all, does it mean they will always be one lawsuit away from being overturned?

[best12bars]

Posted: 11/11/08 at 10:47am

Phyllis--As with Roe vs. Wade, the issue itself could be presented before the Supreme Court, if there was a new issue/case that called into question the interpretation of the constitution.

Roe vs. Wade can't be re-tried, but a new case, with (most likely) a different set of circumstances that were leading back to the same abortion law might (at some point) come before the court.

Same thing with gay marriage.

Same thing with slavery (no joke). Or votes for women.

All of these things could come before the court again, if presented in a new case that challenged the current interpretation of the law as it is written.

But this would have to be a "new issue." Once the interpretation of the law has been defined by the Supreme Court, it's been defined. The end. The only way to change anything would be to rewrite the law and amend the constitution. (which can be done)

But if the Supreme Court has already weighed in on the law as currently written, and given their judgment as to its interpretation, that's that.

If a case were to come up calling this same law (as written) into question, the court would play their "been there, done that" card and deny the case. It would not be tried before them again.

[Phyllis Rogers Stone]

Posted: 11/11/08 at 10:52am

Thanks! That clears things up for me immensely.

[jrb_actor]

Posted: 11/11/08 at 11:04am

Not to disagree, besty, but weren't Bowers vs Hardwick and Lawrence vs Texas essentially the same?

The former upheld sodomy laws and the latter struck them down.

Thus, my thought had been that with a new make up of the court and changing times, we finally got a progressive decision on that issue. And that the courts are more likely to stay progressive is why we don't see as many repeats once rights are given.

But maybe there is a distinction with the above cases?

[YouWantitWhen????]

Posted: 11/11/08 at 11:06am

Back to my original question, does anyone have a comprehensive listing on how civil unions are not the same legally as marriage?

I know that some of you think this feeds into a separate but unequal argument. But if it helps to convince people to overturn prop 8, I think it is worthwhile, even if the argument is not the one favored by all.

So far, this is the best I have found.
Civil Unions Not Marriage

[best12bars]

Posted: 11/11/08 at 11:21am

YWIW---I just "Googled" and found a bunch of stuff. I'll post more links in a minute.

Here's a longwinded article that points out some specific differences toward the bottom:

"What are some of the differences between Civil Unions and Gay Marriage?

Recognition in other states: Even though each state has its own laws around marriage, if someone is married in one state and moves to another, their marriage is legally recognized. For example, Oregon marriage law applies to people 17 and over. In Washington state, the couple must be 18 to wed. However, Washington will recognize the marriage of two 17 year olds from Oregon who move there. This is not the case with Civil Unions. If someone has a Civil Union in Vermont, that union is not recognized in any other state. As a matter of fact, two states, Connecticut and Georgia, have ruled that they do not have to recognize civil unions performed in Vermont, because their states have no such legal category. As gay marriages become legal in other states, this status may change.

Dissolving a Civil Union v. Divorce:

Vermont has no residency requirement for Civil Unions. That means two people from any other state or country can come there and have a civil union ceremony. If the couple breaks up and wishes to dissolve the union, one of them must be a resident of Vermont for one year before the Civil Union can be dissolved in family court. Married couples can divorce in any state they reside, no matter where they were married.

Immigration:

A United States citizen who is married can sponsor his or her non-American spouse for immigration into this country. Those with Civil Unions have no such privilege.

Taxes:

Civil Unions are not recognized by the federal government, so couples would not be able to file joint-tax returns or be eligible for tax breaks or protections the government affords to married couples.

Benefits:

The General Accounting Office in 1997 released a list of 1,049 benefits and protections available to heterosexual married couples. These benefits range from federal benefits, such as survivor benefits through Social Security, sick leave to care for ailing partner, tax breaks, veterans benefits and insurance breaks. They also include things like family discounts, obtaining family insurance through your employer, visiting your spouse in the hospital and making medical decisions if your partner is unable to. Civil Unions protect some of these rights, but not all of them.


MORE...

[YouWantitWhen????]

Posted: 11/11/08 at 12:20pm

Thanks Besty.

I googled and found similar pages, I was just wondering if there had been something specific developed for the No on 8 campaign.

FYI, more than 1/3 of California lawmakers have come out in support of overturning Prop 8.

"Forty-four members of the California Legislature filed a friend-of-the-court brief Monday in support of a lawsuit seeking to invalidate Proposition 8 on the grounds that voters did not have the authority to make such a dramatic change in state law."

Lawmakers Join the Fight Updated On: 11/11/08 at 12:20 PM

[PalJoey]

Posted: 11/11/08 at 3:42pm

I was just going to post that story!

[best12bars]

Posted: 11/11/08 at 3:55pm

"Not to disagree, besty, but weren't Bowers vs Hardwick and Lawrence vs Texas essentially the same? "


Sorry, I blew past this last time, jerby!

You know, I'm not sure... I would guess that something specific led the court to retry this issue. They don't usually retry the exact same issue with the same set of facts and laws in place. I'm guessing either new legislature had been passed with modified laws going into effect, or perhaps new precedences had been set in the lower courts that begged for the higher court to reinterpret it, as written.

I don't know the details I'm afraid, but they most likely heard this case because enough changes in either the laws themselves or lower court precedences (or other circumstances) made a compelling enough case for a "reinterpretation."


EDIT: They don't make the laws or change them, they just interpret them (for all of us). So they were probably looking at some "new" legislature to interpret.

Updated On: 11/11/08 at 03:55 PM

[jrb_actor]

Posted: 11/11/08 at 4:16pm

Well that makes sense--that there was some distinction.

I love how they are activist judges when they ARE simply interpreting the Constitution. Of course, they are only "activist" when one disagrees with them.

[YouWantitWhen????]

Posted: 11/12/08 at 12:27pm

I was not sure which thread to put this on ...

But, it appears some members of the LDS are resigning from the Church over its support of Prop 8.

"SALT LAKE CITY (ABC 4 News) - The strong backlash against the LDS Church over Proposition 8 is taking a new twist. LDS members - sometimes whole LDS families - say they are now leaving the Church because of its opposition to same-sex marriage.

On just one anti-prop 8 website, they reportedly number in the hundreds. Some say they've already resigned; others are apparently about to.

Linda Stay from St. George is one of those resigning from the LDS Church, and is doing so because the Church opposes gay marriage, like the one her son Tyler is in.

Andrew Callahan, a LDS member who has been very vocal speaking out against Prop 8, told ABC 4, "It's very clear to me that many, many people are resigning over this gay marriage issue and the Church's involvement in it."

Now, the last time Utah saw Andrew Callahan, he was delivering anti-Prop 8 petitions to the LDS Church in October, but now, on Callahan's website, “Signing for Something,” there is a new section.

It's reserved for those resigning from or leaving the LDS Church.

And Callahan tells the story of one heartbroken LDS woman in California.

"She doesn't want to be associated with the bigotry and she doesn't want, in any way, to be responsible for teaching the young children to be bigots," said Callahan."

Some LDS members leaving church over same-sex marriage controversy

[best12bars]

Posted: 11/12/08 at 1:16pm

This actually makes me feel a little better today about the human race.

Not much, but I'll take it. I need to feel a little better about "us."

Somebody posted here that there had been (prior to this) 300 "objectors" in the LDS's stance on the issue of gay marriage ... out of 14 million. Barely a blip on the radar.

To see hundreds more suddenly stand up (rather loudly) and change their lives in such a big way, makes me feel incredibly hopeful.

It's a start, in the right direction. I'll take it.

Oh, sure, I want more... but this is a good thing.

[Phyllis Rogers Stone]

Posted: 11/12/08 at 1:19pm

Silly, faggot, always wanting more. It's too soon. You need to wait and let the straighties dole out rights to you on their terms.

[FlyingMonkey1223]

Posted: 11/12/08 at 1:21pm

Hopefully the judges will do the right thing.
However, their reelection is coming up pretty soon, and if they want to stay working they might just favor "the will of the people" on this issue. The Yes on 8 campaign is already getting ready a recall effort for the judges if they overturn prop 8.