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Coalition to Challenge Legality of Prop 8

Jim Burroway

November 5th, 2008

The American Civil Liberties Union, Lambda Legal, and the National Center for Lesbian Rights have filed a petition before the California Supreme Court, urging the court to invalidate Proposition 8 if its passage is certified by the Secretary of State. The groups charge that Prop 8 is invalid because it changes the state constitution’s core commitment to equality for everyone. According to the group’s press release (PDF: 2 pages):

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 to 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, as staff attorney with Lambda Legal. “That’s too big a change in the principles of our constitution to be made just be a bare majority of voters.”

Opponents of Prop 8 tried to block the innitiative from appearing on the ballot on similar grounds last July. At that time, the Supreme Court denied the petition without comment.

Comments

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John
November 5th, 2008 | LINK

If there is a special legal fund to contribute to, please post a link. I’m 100% behind the fight.

CrankyOtter
November 6th, 2008 | LINK

Yeah. Me too.

Most of the “yes” people I spoke with were concerned mostly about losing tax-exempt status for denying gays the right to marry there. Yet I’ve heard of churches that were passing out Yes signs during or immediately after sermons. Any chance we can get all their tax-exempt certs revoked? At least for a full year? I was checking the IRS rules and it could be possible. But I am not a lawyer or tax expert, just a wishful thinker.

Al W.
November 6th, 2008 | LINK

I hope this works, although I’m wondering if this coalition would do better to use the equal treatment that the Cali Supreme Court laid out in its opinion. Remember, they basically said that whatever the straights get, the gays can have too. Well, if the straights want “Marriage” to be only for straights, then NO ONE should have it and EVERYONE should have Domestic Partnerships.

Ephilei
November 6th, 2008 | LINK

BTW, while this is an awful blow to couples in the short term, I am not worried at all in the long term. Support for marriage is growing 1 or 2% or year and in 2012 I’m confident California and at least one other state will pass a pro-marriage proposition.

Todd
November 6th, 2008 | LINK

I am of the same opinion as Al, I rwad the court’s decision and felt that Prop 8 would not overule the will of the court, just change the outcome from Marriage for all to Domestic Partnerships for all. My understanding was always that the court said you can not treat people differently because of sexual orientation and that marriage was the easier route as the more defined institution. I would be fine of the court would say that if mariage is defined by thr California Constitution as only between a man and a woman, than California will not recognize marriage for any couple and the only legally recognized union would be the DP with all the same rights for all couples.

AJC
November 6th, 2008 | LINK

Proposition 4, which would have required doctors to inform the parents of a minor before performing an abortion, was rejected by California voters Tuesday, by a vote of 52% to 48%.

So some of the same people who voted *against* equal marriage voted *for* abortion. It seems as if the morals of some conservatives are just as “relativist” and selective as those of liberals. Since cultural conservatives generally believe that abortion is murder, what this means is that, for many cultural conservatives, murder of the unborn is acceptable, but equal marriage for gays and lesbians is not.

In other words, it’s about power, not principle; and it’s about fear rather than the “evangelical virtue” of charity. People need to be called on their blatant hypocrisy, especially when they flaunt it at the ballot box.

Timothy Kincaid
November 6th, 2008 | LINK

I’m not an attorney, but as I understand the argument of the court, they determined that determined that gay persons are uniquely and distinctly such. In other words, unlike the claims of ex-gay ministries, the court agreed that gay people exist and that which distinguishes them (their sexual orientation) is an attribute rather than a behavior.

The SCOTUS found that efforts to restrict “behaviors” that were specific to this population were not in actuality based on behavior but were in reality an effort to segregate and discriminate against a people. (For those unable to see this distinction, consider a law that banned the “behavior” of wearing a yarmulke. Such a law would be discriminatory because it targeted a specific people and the intent was to criminalize them. Arguments about “everyone is banned from wearing a yarmulke” are specious.)

The California Court went further in determining that due to a history of discrimination, laws which distinguish same-sex attracted persons from opposite-sex attracted persons were subject to strict scrutiny.

As best I know, none of that has been changed. Gay people are still protected from discrimination and laws cannot be written that treat them different from heterosexuals.

Now, however, there is language within the Constitution that specifically and directly distinguishes between gays and straights.

So, in essence, as of Tuesday our constitution says:

1. All citizens have the same rights.
2. Not all citizens have the same rights.

It will be fascinating to see how the Courts interpret this conundrum.

Mark F.
November 6th, 2008 | LINK

I think abolishing civil marriage altogether is a great idea. Domestic partnerships for all, and leave marriage to the churches.

Jason D
November 6th, 2008 | LINK

Mark I’ve been saying that for years.

I would tell religious people.

1 – Since you believe marriage is sacred
2 – The government seems to be ill equiped at keeping marriage scared

3 – Take marriage away from them, then! We don’t let the government preside over baptisms, why marriage?

Simply eject the word “marriage” from our laws, and replace it with “civil unions” You won’t have the government sanctioning gay marriage, because it won’t be sanctioning marriage at all.

Effects:

All legal “marriages” would retain the same rights and responsibilities under a new name.

The word marriage would not apply to gays, straights, or anyone else….at least in a legal sense.

Religious institutions would be free to perform whatever marriages they like. Civil Union paperwork would be required to have the committment legally recognized.

Socially, anyone could claim they are a married couple — but that is already the case anyway.

cowboy
November 6th, 2008 | LINK

Timothy,

Couldn’t that conundrum have been pointed out BEFORE the election? It might have saved a lot of time and money.

Timothy Kincaid
November 6th, 2008 | LINK

cowboy,

I believe it was pointed out. But the Courts let the proposition go forward. I’m not sure what the reasoning was.

werdna
November 6th, 2008 | LINK

Yes, Prop 8 was challenged before the election on the same basic theory but the CA Supreme Court denied the petition without comment (leaving open the filing of this new petition).

The court gave no specific reason, but people who know more than I about these things have written that courts don’t usually like to rule on hypothetical questions. Until the proposition passes, it’s hypothetical. So there’s nothing really odd about their decision not to make a ruling until after the election when they have an actual concrete issue to address.

suburban dyke
November 6th, 2008 | LINK

Let’s fight back. Let’s boycott California wines, produce and travel. Let’s publicize it. Let’s embarrass them. It worked a few years ago in Colorado. What do say?

kevin
November 6th, 2008 | LINK

Suburban Dyke,

Do you really want to boycott the state of California when our real enemies are the Christian fundamentalists who swooped in from Utah and other states to push this vote on the California people? Millions of Californians voted No on Prop 8 and now you want to punish the victims of homophobia? That doesn’t make sense.

California needs your help, not a boycott – which is ill-conceived.

You can start by donating money to the Lambda Legal Defense, the National Center for Lesbian Rights, and the ACLU and earmark it for “marriage equality in CA”.

That needs to be your response to our persecutors. A boycott of California, where 1 out of every 8 people in the US lives and which has an economy in the billions, would not only be ineffective and silly but would serve the interests of our “friends” in the Christian Coaltion and the Catholic and Mormon churches.

Benjamin
November 6th, 2008 | LINK

I think that when the California rules on this that part of the language of their decision should also include the fact that Evangelical Churches and the Mormon Church which has its headquarters about 1,000 miles from California were meddling with California’s civil rights laws and through lies, religious rhetoric and a lot of money they were able to persuade a slight majority of the electorate to pass prop 8. This should definitely be taken into serious consideration and should be included as part of the research and the evidence that is discussed in the court’s findings. This should be a serious indictment of the Mormon Church and of the various Evangelical Churches involved and Catholic Church as well. This needs to be brought into the open and bring a great deal of shame on these organizations for what they have done.

Benjamin
November 6th, 2008 | LINK

I cannot see the court who ruled on this last Spring just letting this go down without doing something to stand up for the civil rights of a minority group. Now that we have a majority of Democrats in Congress along with an absolutely incredible leader and ally in Barack Obama it is just a matter of time before we see a major pleasant surprise for us. The Democrats will make sure there is a SOLID, STRONG and IMPENETRABLE WALL between religion and the government.

Timothy Kincaid
November 6th, 2008 | LINK

Benjamin,

It might surprise you that the Court who ruled last spring isn’t comprised of Democrats. Of the seven justices, six are Republican.

Attmay
November 6th, 2008 | LINK

It’s Utah that should be boycotted, not California. Even if I wanted to, I can’t totally boycott California because I have family there.

But I put up a sign on my door saying “Mormons Not Welcome.”

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