Box Turtle Bulletin

CA Supremes to Decide Perhaps by the End of the Week

The Sacramento Bee is reporting:

The California Supreme Court could rule as early as this week on a lawsuit that seeks to invalidate Proposition 8, court spokeswoman Lynn Holton said today.

The decision this week would be whether to put a stay on the State’s enforcement of Proposition 8 until lawsuits could be heard. The lawsuits are based on the argument that Proposition 8 did not amend the Constitution, but rather revised it to do something materially different than it did before. In other words, this was not a change in how something is done but rather a change in an underlying principle of the Constitution: that all citizens are equal and that gay citizens cannot be excluded from the institutions of the State.

If the court finds that removing a fundamental right of a suspect population is a revision rather than an amendment, the process is different. It requires a two-thirds vote of the legislature before submission to the public.

Some scholars are of opinion that this suit is unlikely to prevail. But there are a few indicators – purely from observation and guesswork – that I find encouraging.

First, this court did not find, as some have, that the State did not provide adequate reason for excluding same sex couples. Rather, they found that gay persons are a suspect class and that all laws written for the express purpose of excluding gay persons or couples are presumed to be in violation of the Constitution and can only pass strict scrutiny if they are narrowly tailored to be the least restrictive means for achieving a compelling governmental interest.

Proposition 8 did nothing to invalidate the strict scrutiny requirements or equal protections provisions of the Constitution. And no one pretends that Prop 8 achieved even a vague government interest and it was inarguably greatly restrictive and broadly tailored. Thus, the proposition leaves the State Constitution in a state of internal conflict. The reading of this document now is “Gays cannot be excluded. Gays are excluded.” Such language is clearly nonsensical.

It leaves the legal scholar with a document that is not much different from that painted on the side of the barn in the Animal Farm, “All animals are equal, but some animals are more equal than others”.

Next, I’m going to speculate on how a judiciary views precedent. Regardless of the conclusions of a court, jurists hold them as concluded. Those who found other evidence to be compelling do not disagree with whether the court has decided or whether such decisions must be followed.

This court found by a 4-3 vote that gays are subject to strict judicial scrutiny and that marriage is a fundamental right. But – and this is the important part – even the three dissenting judges will uphold the position that marriage is now a fundamental right and that gays are now a suspect class. Once the conclusion is reached, it has the force of law and the backing of both supporters and dissenters.

That voters disagree about the fundamental nature of the right to marriage is not of importance to the dissenting judges. That 52% of voters don’t want gays to have equality does not make the suspect status of gays any less real – even to the dissenters. Those who sought to overturn the decision did not disagree with a few judges, but rather with the right of the court to determine who is included in the protections of the constitution – something that all jurists take seriously. Or so I hope.

Finally, and this may seem counterintuitive, these are not liberal activist judges. They did not come into their position with a “gay agenda” and use creative reading to find a “special right”. Six of the seven judges are Republicans, and they found that gay people are equal out of their understanding of constitutional protections. Their decision was based on their reasoning and contrary to what may have been initial prejudices. They will not be easily swayed by Party, ideology, or the whims of political winds. If they found marriage to be a fundamental right, a 52% vote of the populace is unlikely to cause them to no longer see such a right.

Now I may be unduly optimistic, but I have reason to hope that the California Supreme Court will invalidate Proposition 8. And I have a suspicion that the vote will be greater than 4 to 3.

El Coyote Update

The consequences of the Church of Jesus Christ of Latter Day Saints’ decision to enter the political arena and seek secular enforcement of their religious doctrines can be measured in part by the chaos and turmoil caused in the lives and livelihoods of their own members.

We know of families who have been torn apart by Mormon theology on human sexuality. We know of suicides and depression. We know of estranged children and miserable holidays. But we respect the rights of churches to select their own articles of faith – even those that bring unhappiness on those adherants who are gay.

But when the Mormon Church decided to spread outside of its own fold, the tragedy expanded to neighbors and employees and friends and customers. No longer can hurt and difficulty be excused as a matter of private faith; now we see and condemn the public policy efforts that have left a trail of victims in their wake.

And not all victims of this agressive effort are gay, some are faithful members of the church that have been caught in the crossfire.

One example of such is Marjorie Chrisoffersen, the family manager of El Coyote Restaurant. Word of her contribution of $100 to the Yes on 8 Campaign has flown by email throughout Los Angeles’ gay community. And with this community – and its friends and allies – as her best customers, this has the potential to severely hinder her business.

Today Margie released a message:

I have been sick at heart that anyone has been offended by me. I have family, friends, employees from the gay community who are treasured people in my life.

I have been a member of the Mormon church all my life. I responded to their request with my personal donation.

For years the El Coyote has financially and generously supported the gay community and its charities.
Please be my guest for an early lunch Wed., Nov. 12th, @ 11:00 am and allow me to personally speak with you.

Please call and make a reservation as seating is limited. (323) 939-2255.
Margie

I don’t believe that Margie acted out of ill intentions. I suspect that she was just obedient to a call put out by her church leadership, a leadership that I believe gave no care or concern to the sacrifice that they had requested of those members with gay friends, families, and customers.

But I may be wrong. She may feel that the profits made from catering to our community can then be spent on civil harm towards us – as long as the motivation is religious.

I have made my reservation for tomorrow. I want to hear whether Margie believes that giving to a charity excuses taking away a basic right. I want to hear whether she will provide statements of justification or a request for forgiveness.

UPDATE

From JazzyJeff63’s Flickr site

11/10/2008 – I had dinner at El Coyote tonight. When Marj finished having dinner with her family, I called her over to my table and asked “What was your position on Prop 8?”, She replied with “I love you guys, I would never do anything to hurt you, I wish I hadn’t done it”.

She was sincerely regretful, I could feel her hurt as she probably felt mine.

But from Eater:

“El Coyote is known for being a melting pot, we love and tolerate everyone. This has nothing to do with the restaurant. I donated through my church. We would never tell our employees they couldn’t contribute to political organizations—as individuals, they do and support whatever they want. El Coyote has donated thousands of dollars to the gay community through charitable organizations. As a rule, we don’t do politics. We have too many varying opinions here, and that’s the staff’s right.”

While the former sounds a bit like, “I’m sorry”, this statement sounds like justification. It’s the age old plea that “my personal actions should not have any impact on my business” and “I’m separate from my restaurant, so just ignore that the profits come to me”.

I do not in any way challenge Marjorie Cristoffersen’s right to contribute to whomever she wishes. But she will not use profits made from my dollar to take away my rights.

And frankly, I’m not all that interested in being “tolerated” at the moment.

So I’m quite interested in hearing what Margie will have to say tomorrow.

There are now over 4,000 google hits for “el coyote” prop 8.

For an update to this story, see: El Coyote: An Uncompromising Faith

Cleveland May Offer Token Couple Registration

Those who crafted the Ohio ban on gay marriage did so with the intention of excluding gay couples from even the most rudimentary of protections.

Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.

While some anti-gay advocates will loudly proclaim that they have no problem with civil unions, those who sought and achieved the ban in Ohio had no such pretenses. Their prime effort was to ensure that ALL concessions, be they hospital visitation or property rights or any other small conveniences no matter how benighn, be denied to the gay citizens of the state.

Nevertheless, the cities of Cleveland Heights and Toledo have created registries for same-sex or opposite-sex couples. Though such registries have no requirements on any entity, public or private, and provide no benefits, they are useful for employees of those companies that offers domestic partner benefits. It provides an easy and convenient method by which to prove qualification.

Now some councilmen in Cleveland are hoping that their city will join them. From the Plain Dealer

The registry would be nonbinding, meaning employers and other organizations would not be forced to extend health care benefits to unwed couples or allow visits with a hospitalized partner. But supporters of the plan are hopeful it might encourage the allowance of such rights.

Councilman Joe Cimperman, a sponsor of the idea, said a registry would help Cleveland as it bids to host the 2014 Gay Games, a sporting event with a global audience. In addition, fees paid by those who register could pour some much-needed cash into city coffers.

“We are trying to show that we are a serious city when it comes to tolerance,” said Cimperman, who with other colleagues is expected to introduce legislation next week.

We wish them success.

(hat tip Stefano)

Should I Give Up my Favorite Mexican Restaurant?

I just received a very distressing email. It started:

I wanted to share with you that the owner of El Coyote, Marjorie, donated $100 to the Yes on 8 campaign…

El Coyote Café is a Los Angeles landmark. Over 75 years old, and still family owned, it is perhaps best known as the site of Sharon Tate’s last meal.

Locals know it as a favorite of many of who just want a meal and a drink, and don’t want to pay much to get it. A taco and enchilada with rice and beans is $9.50; pair that up with a margarita and you’re out the door for less than twenty bucks.

El Coyote is also delightfully tacky with a vast collection of “art”, the kind that includes paintings with windows that light up and frames made of shells. The waitresses wear huge Spanish dresses with lots of frills and most have been there for decades. It’s loud, it’s high in fat content and calories, it’s unsophisticated, and it’s always always busy.

But what makes El Coyote a delight is that its one of those places that are loved by straights and gays alike. On any given night, a quarter to a third of all patrons are gay and the rest are singles out together, birthday parties, families with kids, or old married couples.

A search of the website via the LA Times shows that Marjorie Chrisoffersen did contribute $100 to the Yes on 8 Campaign. And Marjorie is the daughter of Grace Salisbury, the owner.

But what do I do with this information? I’ve been a faithful patron for many years, sometimes as frequently as weekly. So it is for me a particularly distressing dilemma.

Do I boycott the establishment? If so, for how long and to what effect? What would alleviate my concern, what can I demand? Is it enough that Marjorie (who runs the place with her husband) gave though Grace did not? Is $100 enough for me to view the establishment at “anti-gay” when I know full well that several of the staff are gay and that the environment is always welcoming? What would I say if Marjie came by with her water pitcher asking how everything was?

I think this is but an example of the sort of conflict that we are going to each have to resolve as we find that friends, family, and service providers that we had thought of as supportive actually do not believe that we are entitled to equality under the law.

Schwarzenegger Supports Court Case to Overturn Prop 8

In the wake of the election, the Arnold Schwarzenegger has finally seen fit to make a public comment about Proposition 8. (LA Times)

“It’s unfortunate, obviously, but it’s not the end,” Schwarzenegger said in an interview on CNN this morning. “I think that we will again maybe undo that, if the court is willing to do that, and then move forward from there and again lead in that area.”

He was aparantly refering to the lawsuit asking the state Supreme Court to invalidate the proposition. Should that effort fail, the Governor suggests perseverance.

Today, Schwarzenegger urged backers of gay marriage to follow the lesson he learned as a bodybuilder trying to lift weights that were too heavy for him at first. “I learned that you should never ever give up. . . . They should never give up. They should be on it and on it until they get it done.”

I appreciate his sympathies, especially as gays, friends, and families take to the streets in protest throughout the state. I do wish, however, that he had been more vocal before Tuesday. With such a narrow margin, a little heavy lifting on Arnold’s part might have influenced the outcome.

Proposition 8 and Race

One of the lessons learned in the vote on Proposition 8 is that Black and Hispanic voters did not support marriage equality. Because of the inexact nature of exit polling, and because of the rounding of percentages, it is difficult to state anything with certainty, but the following seems to be correct:

It appears that Black voters determined the passage of Proposition 8. Although some sites claim that this is not the case, by my calculation if the Black vote is excluded from the count, the Proposition would have just slightly less than half of the votes needed to pass. It appears that if just 50% of black voters had voted against institutionalized discrimination this amendment would have failed been statistically even.

Hispanic voters supported the amendment 53% to 47%. This split, while nearly offsetting the non-Hispanic white vote, was not enough of a split to cause the amendment to pass.

There was also a gender divide. White women were 4% less likely to support the proposition and Latino women were 2% less likely.

However, in what seems to be an inconsistency, black women seem to have favored the proposition significantly more than black men. Women supported it by 75% while the black population as a whole polled at 70%. This suggests that black men may have been as much as 13% less likely than black women to support this initiative. It is difficult to understand what this result may be saying.

It is important to recall that the Yes on 8 Campaign deliberately lied to and deceived black voters. They funded mailers and the robocalls falsely implying that Sen. Obama was in favor of Prop 8. Going forward we must be aware that anti-gay activists, including the hierarchy of the Mormon and Catholic churches, will say or do anything in a campaign, no matter how dishonest, and that they have now been rewarded for their duplicity and deceit.

UPDATE: To help understand my statements, I’ve placed my calculation below. Please understand that this is from the exit polls and not from the actual vote. This is subject to all sorts of rounding errors which are greatly increased by multiplying. Further, note that the actual voting results show that the proposition passed with 52.4%, which is larger than the 51.9% on the below grid.

Please also note that the purpose of this commentary is NOT to assign blame to our African-American neighbors. There is plenty of blame to spread around, and I place most of it at the feet of those who ran a campaign of complete dishonesty.

Marilyn Musgrave Ousted

Congresswoman Marilyn Musgrave is best known as the main sponsor of the anti-gay Federal Marriage Amendment in the 108th and 109th Congresses. This set her up as a major target for the gay community and a multi-year effort was initiated to remove her and her anti-gay activism from office.

On Tuesday, Musgrave lost her seat.

U.S. House District 4 Democratic candidate Betsy Markey beat out incumbent GOP Congresswoman Marilyn Musgrave in Tuesday’s election.

Markey won with 55 percent of the votes compared to Musgrave’s 44 percent. With 89 percent of the precincts reporting, Musgrave has received 130,833 votes and Markey received 163,155 votes.

It was not just gay rights that led to her ouster. It was her focus on issues unrelated to her district. Her prioritization of conservative social issues was just an indication that her priorities were related to her own personal religious agenda and not to the day to day concerns of her constituents.

Michael Huttner, executive director of the Denver-based liberal activist group ProgressNowAction, said Markey’s wide margin of victory showed that Musgrave was unseated over more than just her views on gay marriage.

“She, perhaps more than any single elected (official) in Colorado, completely ignored the needs of her district,” he said.

“Rather than helping a record number of foreclosures and thousands of people who lack health care in her district, she spent her three terms with her single issue of bashing gays, which is just completely out of touch and mean- spirited,” Huttner said.

Senator Wayne Allard (R-CO) was the chief sponsor in the Senate. Allard did not seek reelection this year. As of January, neither chief sponsor will be in Congress and the chief cheerleader for amending the US Constitution will no longer be in the White House.

Warning New Jersey and New York

Delerious over how their campaign of lies succeeded in California, anti-gays are already planning on their next target:

Gallagher said anti-gay marriage groups plan to focus next on New Jersey and New York, where the state legislatures are being lobbied to pass laws legalizing same-sex marriage.

The plan is to mobilize the same religious factions that joined forces in California to deter lawmakers from “taking on this divisive social issue while we are in the middle of a huge financial crisis,” Gallagher said.

And they will use the same tactic of flat-out lying:

Leaders of the successful Proposition 8 campaign say an unusual coalition of evangelical Christians, Mormons and Roman Catholics built a majority at the polls Tuesday by harnessing the organizational muscle of churches to a mainstream message about what school children might be taught about gay relationships if the ban failed.

If I were in New York or New Jersey I’d start marching and protesting today.

Maine Marriage Support

The State of Maine has had some few limited same-sex partnership rights in the form of Domestic Partnerships since July of 2004. But there appears to be support for increasing recognition and protections.

On election day, Equality Maine had volunteers sit at 100 precinct hoping to collect 10,000 signatures in favor of marriage equality. They got over 33,000, nearly 5% of all Maine voters.

We hit our goal of 10,000 signatures by noon on Election Day. I was stunned, but there was no time to slow down and celebrate. Calls began pouring in from our volunteers — they were running out of postcards, and voters wanted to sign. We scrambled to print and deliver thousands more postcards across the state.

Lines at the polls were long, but even after waiting an hour or more to vote, people waited in line to sign our postcards. As the postcards ran out, voters began signing scraps of paper, jotting their names and addresses down on anything they could find, and handing them to our volunteers.

When we approached voters about marriage equality for all couples in committed relationships, the most frequently-asked question we heard was this: Where do I sign? I’m so proud of our hard-working field organizers and volunteers. And I’m so proud of my fellow Mainers, who realize that marriage is about treating all families equally under the law.

They are also reporting that after the election there are now “pro-equality majorities” in both chambers of the legislature. I wasn’t able to determine how such persons were defined.

However, Equality Maine appears to have a go-slow approach. WCSH6 reports

Betsy Smith of Equality Maine said her group is trying to build support for gay marriage slowly, telling Mainers it would be another form of legal protection for gay and lesbian couples. She said Equality Maine members will push for marriage once they feel most mainers would support it.

Smith said, “Our plan in Maine is we know we have to change the hearts and minds of Mainers. So that’s what we’re going to do. We’re going to do the work. We’re going to do the hard work of talking to voters.”

Marriage Equality to come to Sweden in May 2009

The coalition government of Sweden has been dancing around a way to bring about a change in marriage law to allow for same-sex couples without offending one part of their coalition, the Christian Democrats. Now a solution appears to have been found.

Sweden’s four-party centre-right government has been split on the issue, with the junior partner Christian Democrats also opposed to the use of the word “marriage” for homosexual unions.

However the three other parties, the conservative Moderates, the Liberals and the Centre Party, are in favour of a gender neutral law that eliminates the current reference to marriage as something between a man and a woman.

The opposition Social Democrats, the country’s biggest party, also support such a law, and together the parties would garner enough support to adopt the legislation in parliament.

The process will be for the coalition government to propose a marriage bill that does not have gender-neutrality and for the parties that support marriage equality to amend that bill. The Prime Minister predicts passage and implementation by next year:

“The coalition government has agreed that we will present a basic marriage bill to parliament. The three parties in favour of a gender neutral marriage law will then present an accompanying motion seeking to have such a law in place by May 1, 2009,” Reinfeldt said.

Sweden was one of the first countries to allow for Registered Partnerships in 1995. They will be the seventh nation to offer same-sex marriage rights:

2001 Netherlands
2003 Belgium
2005 Spain
2005 Canada
2006 South Africa
2009 Norway
2009 Sweden

What about New York?

Public opinion polls in New York suggest that the residents of the Empire State may well be strongly supportive of marriage equality. The Governor is a strong advocate of marriage and has on more than one occasion demonstrated his support. In June 2007, the state assembly passed a bill legalizing same-sex marriage in a decisive 85-61 vote, with four Republicans supporting the bill.

Same-sex marriages conducted outside New York in a place where they are legal are currently recognized by the state.

And for the past year, the only thing standing in the way of a Senate vote on the bill was that the Republicans had a tiny majority and the Senate Leader refused to let the bill come up for a vote.

And now that has changed. As a result of Tuesday night, the Democrats will go into the next legislative session with a two vote lead in the Senate.

So why is it too early to celebrate?

Because four of the Democratic Senators are considering backing a Republican Senate Leader. The Democrat up for Leadership is black, which does not sit well with these Senators.

Three of the four holdouts are Latino legislators who feel Latinos have been underrepresented in leadership roles in city and state government and want to press the issue in the Senate.

Mr. Díaz said the four men, who have formed an independent political caucus, may put off making a decision on whom to back for leader until the new legislative session begins in January.

“There’s a concern that we have a black president, a black governor and we have a concern that we have to be sharing power,” said Mr. Díaz.

But race is not the only factor in the decision as to who should lead the Senate.

Mr. Díaz, a Pentecostal minister, has long been one of the most socially conservative voices in the Senate. He continued to say on Wednesday that he could not support as leader any lawmaker who would help make gay marriage become law, even if it were his own son, Assemblyman Ruben Díaz Jr.

“I would not support anybody, Malcolm Smith, my son Ruben Díaz Jr., anybody who supports that,” he said.

Senator Diaz seems to be indicating that he would rather that Republican Dean Skelos lead the Senate than that marriage equality come to New York. And while Senator Skelos has met with Log Cabin and has indicated a willingness to be more open to gay issues than his predecessor, Senator Bruno, he is not in favor of gay marriage and it is doubtful that he would allow such a bill to go forward.

As yet there is no indication as to who these four Senators will eventually support. And there is some indication that the Democratic leadership may be willing to jettison marriage equality – at least temporarily – in order to achieve control of the Senate.

Senator Thomas K. Duane, an openly gay Democrat from Manhattan who has been a major advocate for marriage legislation, said, “We’re putting everything on hold until we fix the economy.”

And even were a vote to take place, there is no certainty that marriage equality would pass. While I believe some Republicans may be lined up in support, they may not be enough to outnumber these and other potential Democratic defectors.

One Proposal for Going Forward Towards Marriage Equality in California

The voters of California have spoken twice about whether gay citizens are to be considered full citizens of the State, regarding marriage. In 2000, the voters declared with a majority of 61.4% that the state would only recognize marriages between opposite sex couples. And just this week they declared by 52% that the decision of the Supreme Court be overturned to exclude gay couples from marriage recognition.

But the voice of the people need not be silent at this point, never to change their view. And polls show that time is working in favor of marriage equality. Both a growing comfort with gay couples and a sharply different attitude between youth and seniors suggests that without unanticipated circumstances it is inevitable that soon a majority of California voters will believe in marriage equality.

So I propose that we, as a community, consider the following strategy:

We place a constitutional amendment on the ballot of every statewide election until Proposition 8 is overturned. Such an amendment would be written to do nothing other than reverse the language that was inserted on Tuesday night.

An amendment to the state constitution can be placed on the ballot by means of valid signatures totaling 8% of the previous gubernatorial votes. This means that as few as 694,324 valid signatures need to be collected. A serious effort combining No on Prop 8 and HRC lists along with pride parades and festivals and Universal Unitarian, United Church of Christ, Episcopal, and some United Methodist congregations should make this a relative inexpensive project. Even if signature gatherers are required, the cost should be less than a million dollars in total.

I propose that beyond the cost and effort to collect and submit signatures that we do nothing towards passing the amendment. Nor should we go in with any expectation of success. Our community cannot well afford either the financial or emotional cost of a battle like the one we have just gone through.

But we should make it clear to the voters that we can and will continue to place this issue before them until they side with equality.

There are a few possible negative results of such a plan.

If we spend nothing to pass such an amendment, it may fail by a larger than 52% to 48% margin. This will embolden those who seek to oppress us to claim that California is moving in their direction.

This might even cause some of our allies to become disheartened. We must make it clear that we know it will take time for Californians to come to our aid but that we will be unrelenting.

Also, it may give some voters the impression that they’ve “already answered this”. Why are we back when they said “No” once, twice, three times, etc.? That is an irritation that we will just have to withstand.

But this approach also has some positive sides.

For what we spent on Proposition 8, we could fund 35 amendments. And the cost could be spread over several years allowing us to recover financially and emotionally without giving up a constant pressure.

Repeatedly having to choose discrimination is emotionally distressing to those persons who like to think of themselves as decent and loving. You can always tell yourself, “gosh, how did I vote?” on one or two amendments and “remember” that you just must have sided with decency and love for your neighbor. But after the third time, it’s pretty hard to lie to yourself.

And if we spend no money to front this, the enemies of freedom will have to expend increasingly large amounts to fight against us which keeps that money from doing evil elsewhere.

And finally, if we do decide that the time is right to make another large stand and that we could win, we already have the apparatus in place to raise funds, run ads, and make our claim on the promises of equality that will still stand in the Constitution ready to be freed from the shackles of bigotry, religious intolerance, and heterosexual privilege.

No On 8 Concedes

California’s No on 8 campaign has issued a statement conceding the passage of Prop 8:

Tuesday’s vote was deeply disappointing to all who believe in equal treatment under the law.

All Americans are harmed when any of us are discriminated against or have our fundamental rights taken away.

Make no mistake, this fight is not over.

We remain committed to ensuring full equality under the law, just as the thousands of same-sex couples who joyously married in California are committed to each other.

While it is understandable to be angry that a deceptive campaign could lead to such an unfair and wrong outcome, we need to keep focused instead on the progress we have made.

Thousands of volunteers and contributors gave selflessly to this fight for equality. Political leaders—Democrats and Republicans alike–took strong stands and spoke out against the distortions against us. Clergy, labor, educators and business leaders eagerly joined our cause. And we came within 4% of making history and protecting marriage equality in California.

The momentum is clearly on our side.

So, as disappointed as we are, we know that there is still hope and there is still love and, yes, there is still work to do. With our continued effort and by building on the support generated in this campaign, we will prevail. There will be equality. For us all.

Since No on 8 is not involved with the lawsuits filed before the California Supreme Court seeking to overturn Prop 8, that effort will likely continue.

WeHo Protest March

Watch your news.

There is a very large 60’s style protest march going on right now in West Hollywood.

Coalition to Challenge Legality of Prop 8

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.