Three Lawsuits Filed Challenging Proposition 8

[PalJoey]

Posted: 11/5/08 at 4:39pm

******NEW POST BELOW******

The ACLU, Lambda Legal, the National Center for Lesbian Rights and Equality California filed their lawsuit:

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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 – 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, 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 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.

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Updated On: 11/5/08 at 04:39 PM

[Mother's Younger Brother]

Posted: 11/5/08 at 5:06pm

Um...that's pretty brilliant. But where was that kind of reasoning and eloquence in the "No on 8" campaign??

[PalJoey]

Posted: 11/5/08 at 5:12pm

You've got great 20/20 hindsight. Why don't you get involved and make it foresight next time?

[Mother's Younger Brother]

Posted: 11/5/08 at 5:13pm

How do you know I wasn't involved?

(I was, by the way...and experienced the campaign's incompetance first-hand.)

[Jilani]

Posted: 11/5/08 at 5:17pm

Interesting - if that is indeed true about the California Constitutional amendment process, our side may have a winning argument. Massachusetts also requires the legislature to approve constitutional amendments before they go on the ballot, even if they are initiated by citizen petition. That was part of our winning strategy - keep the amendment from getting on the ballot in the first place by derailing it in the legislature. We know that the CA legislature is pro-marriage equality, because they previously passed legislation to enact it that was then vetoed by the governor. In Massachusetts, the anti-gay forces tried to punish the legislators at the polls for derailing the amendment, but in every election, pro-gay legislators were re-elected, whereas anti-gay legislators were defeated by pro-gay challengers. This could ultimately be a winning strategy in California, and it introduces democracy into the process (i.e., if you don't like the result, vote the person out).

[Elphaba]

Posted: 11/5/08 at 5:28pm

actually 2 lawsuits have been filed

[PalJoey]

Posted: 11/5/08 at 11:04pm

From talkleft.com

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Three lawsuits were filed today in California courts seeking to have Proposition 8, banning gay marriage, declared invalid.

The principal argument is that Proposition 8 is a constitutional revision that cannot be accomplished by constitutional amendment.

[One] suit filed with the high court in San Francisco this afternoon argues that the California Constitution´s equal protection provisions do not allow a bare majority of voters to use the amendment process to divest politically disfavored groups of constitutional rights. Such a sweeping redefinition of equal protection would require a constitutional revision rather than a mere amendment, the petition argues. Article XVIII of the California Constitution provides that a constitutional revision may only be accomplished by a constitutional convention and popular ratification, or by legislative submission to the electorate.

That lawuit was filed by San Francisco City Attorney Dennis Herrera, Los Angeles City Attorney Rocky Delgadillo and Santa Clara County Counsel Anne C, on behalf of San Francisco, Santa Clara County and the City of Los Angeles [More..]

A second suit was filed by the National Center for Lesbian Rights on behalf of same-sex couples. The third was filed by Gloria Allred on behalf of a lesbian couple.

City Attorney Herrera further explained the grounds:

The issue before the court today is of far greater consequence than marriage equality alone," Herrera said. "Equal protection of the laws is not merely the cornerstone of the California Constitution, it is what separates constitutional democracy from mob rule tyranny. If allowed to stand, Prop 8 so devastates the principle of equal protection that it endangers the fundamental rights of any potential electoral minority— even for protected classes based on race, religion, national origin and gender. The proponents of Prop 8 waged a ruthless campaign of falsehood and fear, funded by millions of dollars from out-of-state interest groups. Make no mistake that their success in California has dramatically raised the stakes. What began as a struggle for marriage equality is today a fight for equality itself.
Three Lawsuits Filed Challenging Proposition 8

[PalJoey]

Posted: 11/5/08 at 11:06pm

Here's info on the third:


Diane Olson, left, and her spouse Robin Tyler appear with their attorney Gloria Allred, who represented them in their victory before the California Supreme Court in May. Once again, they are finding themselves in the eye of the same-sex marriage storm.
Gay rights backers file 3 lawsuits challenging Prop. 8

[FindingNamo]

Posted: 11/5/08 at 11:08pm

Cameras, microphones. Oh, look, it's Robin Tyler.

[brdlwyr]

Posted: 11/5/08 at 11:11pm

This issue reminds us how important Obama's victory was last night in regard to the make up of the federal judiciary!