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Same-sex marriage (SSM) &
domestic partnerships in California

Legal actions following the passage of Prop. 8

Sponsored link.


Is Prop. 8 enforceable?

On NOV-06, within 24 hours of the initial results being published, there were already some court challenges by municipalities, civil liberty, and marriage equality groups to have the vote nullified.

Back in 2008-JUL, the Supreme Court of California refused to consider a petition to review the constitutionality of Prop 8 prior to the vote on 2008-NOV-04. A key consideration at the time was whether Prop 8 was:

bulletA minor change -- called a "constitutional amendment" -- or
bulletA major change -- called a "revision" to the constitution.

There had been no previous analogous constitutional cases for the court to use as a guide. There is no precedent for a constitutional amendment that actually identifies a minority of the state's citizens and terminates one of their basic human rights -- in this case, the right to marry the person that one loves and to whom they wish to make a lifelong commitment.

Prior to the vote, Peter DelVecchio of The Advocate -- a leading gay-positive magazine -- asked:

"Look at it this way: Would a constitutional provision barring African-Americans, and no one else, from marrying be a big deal, i.e., a revision, or just an amendment? How about one taking away women's right to vote? Jews' right to worship? Prop. 8 is indistinguishable from each of these examples in the eyes of the law because all would involve depriving a suspect class of a fundamental right. Can any of these truly be matters the framers of the California Constitution intended to leave to the whim of 50 percent of the voters plus one?"

"In its [2008-MAY] marriage decision, a majority of the California Supreme Court wrote this:

'[T]he California Constitution guarantees same-sex couples the same substantive constitutional rights as opposite sex couples to choose one's life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage'."

"My bet is that the court that penned these ringing words will not, at the end of the day, permit our rights, so recently recognized, so hard won, to be so easily, so arbitrarily and, most significantly, so unconstitutionally snatched away." 1

A "suspect class" referred to above is a legal term describing a "protected group." It refers to a group of individuals identified by their gender, race, color, sexual orientation, religion, gender identity, or degree of ability, etc. whose rights are equally protected under the state's laws and constitution.

Faced with a petition requesting that they define Prop 8 as either an amendment or a revision, the court could rule in one of two ways:

bulletIf the court recognizes Prop 8 as a mere amendment to the Constitution, further political and legal action is inevitable. It is unlikely for homosexuals, bisexuals and civil rights advocates to pack up their tents and leave.
bulletIf the court recognizes Prop 8 as a revision to the Constitution, then the vote would have to be ratified -- or perhaps reinitiated -- by the legislature. Since the legislature has passed two bills in recent years to legalize SSM, ratification or initiation of Prop 8 would be unlikely.

Legal challenges filed immediately after the vote:

Mercury News reported on 2008-NOV-05 -- the day that the results on Prop 8 became available -- that:

"... civil rights groups and San Francisco city officials filed two separate legal challenges in the California Supreme Court, asking the justices to block the state's latest ban on same-sex marriages. The salvos are expected to set in motion another protracted legal tussle over gay marriage that could eventually spill into other courts, including, at some point, the U.S. Supreme Court." 2

Equity California announced that the American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights have initiated a petition requesting that the California Supreme Court today invalidate Prop. 8.

Jenny Pizer, a staff attorney with Lambda Legal -- a group promoting marriage equality -- wrote in a statement:

"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. That's too big a change in the principles of our constitution to be made just by a bare majority of voters." 3

Lambda Legal claims that Prop. 8 is actually a revision of the constitution that should have been initiated by the legislature instead of by groups of citizens in a proposition.

Elizabeth Gill, a staff attorney with the ACLU of Northern California said in a statement that 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." 3
The petition to the court states in part:
"Proposition 8 would strike directly at the foundational constitutional principle of equal protection in a manner that far transcends its immediate impact on a particular group, by establishing that an unpopular group may be selectively stripped of fundamental rights by a majority of voters." 3

The legal challenges filed Wednesday argue that a ballot proposition can't be used to amend the state constitution when it strips away an established legal right, in this instance the equal right of gays and lesbians to marry. In court papers, gay marriage supporters insist such a provision can only go to the voters after first being considered by the Legislature. As a result, they've asked the Supreme Court to block Proposition 8 from going into effect.

If the courts decide that the Prop. 8 vote by a mere 52% of the voters is constitutional, then there is no limit on the number and nature of future propositions. Religious groups could initiated a proposition that would prevent Atheists from voting; anti-immigration groups could initiate a proposition to prohibit access to emergency rooms by undocumented immigrants; and so on. Any unpopular group could be attacked.

Mercury News further reports that:

"San Francisco city officials, joined by Santa Clara County and Los Angeles, filed an identical legal argument with the justices. 'The core purpose of a constitution is to protect minority rights,' said Shannon Minter, legal director for the National Center for Lesbian Rights. 'It's the law of California that same-sex couples have the fundamental right to marry'."

"Proposition 8 supporters vow to defend the law in court, saying the legal challenge is an attempt to undermine the will of the voters. They view the measure as no different from past voter changes to the constitution, such as restoration of the death penalty. 'I don't think they are going to get very far,' said Andrew Pugno, lead attorney for the Proposition 8 campaign."

"Legal experts such as former state Supreme Court Justice Joseph Grodin say the challenge raises novel questions for how the high court deals with a constitutional amendment that conflicts with the justices' past ruling on a constitutional right. But if the argument fails, many legal analysts believe Proposition 8 will be challenged in the federal courts. 'Sooner or later, a couple that wants to be married will bring their own lawsuit to federal court or challenge Prop. 8 under U.S. constitutional law,' Chemerinsky said." 2

Such a challenge in federal court could travel the same path as the ironically named "Loving v. Virginia" case which ended up in the U.S. Supreme Court. It ruled that inter-racial couples could marry anywhere in the U.S.. That was in 1968.

Status of the legal challenges:

The Supreme Court of California refused to issue an injunction as the plaintiffs requested. This would have temporarily suspended Prop.8 until the main case is decided. As a result, loving committed same-sex couples are no longer permitted to marry in the state.

However, the court has accepted the cases for consideration. It issued an order:

"...directing the parties to brief and argue the following issues:

  1. Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?
  2. Does Proposition 8 violate the separation of powers under the California Constitution?
  3. If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?" 5

Oral hearings may be scheduled for 2009-MAR. The court's decision will probably be released in the Spring or Summer of 2009. The decision is due within 90 days of the hearing. 5

Attorney General switches position:

Jerry Brown was the governor of California from 1875 to 1983 and is now its Attorney General. He voted against Prop. 8 personally, but initially said he would fight to uphold the results. This is the normal position of an Attorney General: to support any proposition passed by public vote. However, he has since changed his mind:

"... upon further reflection and a deeper probing into all the aspects of our Constitution. ... It became evident that the Article 1 provision guaranteeing basic liberty, which includes the right to marry, took precedence over the initiative. Based on my duty to defend the law and the entire Constitution, I concluded the court should protect the right to marry even in the face of the 52 percent vote."

OneNewsNow commented that:
"Brown filed a legal brief saying the measure that amended the California Constitution to limit marriage to a man and a woman is itself unconstitutional because it deprives a minority group of a fundamental right." 6 

That is, it would be similar to a 52% vote by the public to eliminate the right of inter-racial couples to marry.

Shannon Minter, legal director of the National Center for Lesbian Rights, referred to Brown's decision as:

"... a major development. ... The fact that after looking at this he shifted his position and is really bucking convention by not defending Prop. 8 signals very clearly that this proposition can not be defended." 4  

"Yes on 8 campaign wants existing same-sex couples to be forcibly divorced:

On 2008-DEC-18, the Yes on 8 campaign has moved to have the state forcibly divorce the almost 20,000 same-sex married couples, against their wishes.

OneNewsNow stated that:

"The Yes on 8 campaign filed a brief telling the court that because the new law holds that only marriages between a man and a woman are recognized or valid in California, the state can no longer recognize the existing same-sex unions.   'Proposition 8's brevity is matched by its clarity. There are no conditional clauses, exceptions, exemptions or exclusions,' reads the brief co-written by Kenneth Starr, dean of Pepperdine University's law school and a former independent counsel who investigated President Bill Clinton.   Both Brown and gay rights groups maintain that the gay marriage ban may not be applied retroactively." 4 

There appears to be no precedent for a state constitutional amendment to be made retroactive.

References used:

 The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Peter DelVecchio, "Calif.'s Prop. 8: It's Not Over Till It's Over. Even if California voters pass the antigay marriage amendment in November, marriage equality could still prevail.," Advocate.com. 2008-JUL-18, at: http://www.advocate.com/
  2. "Same-sex marriage ban challenged in court," Mercury News at: http://www.mercurynews.com/ci_10906871
  3. Justin McLachlan, "First prop. 9 lawsuit filed," 2008-NOV-05, at: http://justinmclachlan.com/
  4. Lisa Leff, "California Attorney-General turns against Prop 8," Associated Press, 2008-DEC-20, at: http://www.onenewsnow.com/
  5. "Proposition 8 Cases," Supreme Court, at: http://www.courtinfo.ca.gov/
  6. "So much for those pesky voters," Seeing Red AZ, 2008-DEC-21, at: http://seeingredaz.wordpress.com/


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Copyright © 2008 and 9 by Ontario Consultants on Religious Tolerance
Latest update and review: 2009-JAN-18
Author: B.A. Robinson

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