Same-sex marriage (SSM) and
domestic partnerships in California
Amici Curiae briefs opposed to
"Amici curiae" is a Latin phrase meaning "friends of the court." Like
many of our legal traditions, it can be traced back to the Roman Empire. It
allows an interested party to file an opinion before a court in order to help
the court reach a fair decision.
Amicus briefs could be fined in the Prop. 8 case up until
JAN-15. Many dozens were file by the deadline, representing hundreds of groups
Most of the briefs filed with the California Supreme Court favored
marital equality for persons of all sexual orientations -- heterosexual,
bisexual and homosexual.
2009-JAN-15: Amici curiae briefs filed in opposition
to Prop. 8:
Most of the briefs favored the declaration of Prop. 8 as unconstitutional. 1 They were from a broadly based collection of
organizations representing many segments in the culture, including mainline
religious groups, liberal religious groups, secular groups, and individuals.
Included were 7 civil rights organizations, 15 clergy who perform marriages,30 family law professors and specialists,30 bar or lawyers'
associations, 29 constitutional law professors,40 Assembly members, 22
senators, 53 labor unions, 3 Quaker yearly meetings,
three other religious denominations, and 22 individuals.
A partial list of groups includes:the Anti-Defamation
League, Asian Law Alliance, California Council of Churches, California
Labor Federation, California NAACP, California Rural Legal Assistance, Feminist Majority Foundation, General Synod of the United Church
of Christ, League of Women Voters of California, Mexican American Legal
Defense and Educational Fund, National Organization for Women, National
Senior Citizens Law Center, Progressive Jewish Alliance, Unitarian Universalist
Alliance of Congregations, and various gay-positive groups. The National
Center for Lesbian Rights provides a larger list. 2
They were joined by a group of businesses, including Google who expressed a
concern that California's image has suffered since the election.
Google General Counsel Kent Walker wrote:
"In September of
last year, Google announced its opposition to California's Proposition 8.
While the campaign was emotionally charged and difficult for both sides, in
the wake of the election many were concerned with the impact Proposition 8
could have on the personal lives of people they work with every day, and on
California's ability to attract and retain a diverse mix of employees from
around the world."
"That's why we've signed an amicus brief ... in support of several cases
currently challenging Proposition 8 in the California Supreme Court. Denying
employees basic rights isn't right, and it isn't good for businesses. We are
committed to preserving fundamental rights for every one of the people who
work hard to make Google a success." 3
Amicus brief filed by a broad range of faith groups:
A single brief was filed by the California Council Of Churches; The Right
Reverend Marc Handley Andrus, Episcopal Bishop of California; The Right Reverend
J. Jon Bruno, Episcopal Bishop of Los Angeles; The General Synod of the United
Church of Christ; Northern California Nevada Conference of the United Church of
Christ; Southern California Nevada Conference of the United Church of Christ;
Progressive Jewish Alliance; Unitarian Universalist Association of
Congregations; and Unitarian Universalist Legislative Ministry, CA.
Some of the points raised by the brief are:
The right to marry is an inalienable right according to Article 1 Section
1 of the California Constitution. To deny same-sex couples this right violates
the "bedrock principle of equal protection of the laws protected by Article 1,
The change specified by Prop. 8 is a revision -- a significant change --
to the constitution. Article XVIII of the Constitution provides a process by
which such a revision can be made to the constitution to deny same-sex couples
this right to marry. It would require either:
A 2/3 vote of both the House and Senate, or
A constitutional convention.
One of these options would have to be followed by a popular vote. A simple
proposition is insufficient. "If article XVIII means what it says, then
Proposition 8 is a nullity."
Propositions can make minor amendments to the Constitution, but not a
Faith groups in California have diverse beliefs and policies concerning
their churches solemnizing same-sex marriage as a religious ritual, and their
clergy officiating at such marriages. However, many faith groups and clergy
are strongly in favor of same-sex civil marriage and of the
constitutional guarantee of equal protection.
Those faith groups contributing to this brief "... wish to strengthen
families. There is a broad spectrum of families in our communities, including
those with lesbian, gay, bisexual and transgender parents and other family
members. ... All of them should enjoy the full protection of the law and the
full support of our social services."
Prop. 8 attempts a radical revision to the California Constitution by
revoking the inalienable right of a particular class of Californians --
same-sex couples -- to marry.
If Prop. 8 is allowed to stand, then: "All Californians are threatened,
for if 'inalienable' rights and equal protection of the laws may be revoked by
a simple majority vote, then none of us is safe from the tyranny of temporary
majorities that constitutional safeguards are supposed to protect against."
For example, religious minorities could lose some of their rights.
"If Proposition 8 is valid, then our most cherished rights are in danger,
including the right to be free from persecution based on religion. After all,
if the equal protection rights of one group defined by a suspect
classification may be taken away by a mere majority vote, those rights of any such group may be taken away just as easily. Religious groups like amici curiae know from long experience the dangers posed by placing that
kind of power in the hands of temporary, easily manipulated majorities."
"Proposition 8 should not be applied retroactively to invalidate marriages
performed before its adoption. ... Retroactive intent must be clear before
legislation or an initiative amendment may be given retroactive effect. ...
Here, indications of retroactive intent are wholly absent, and retroactive
application would disrupt settled expectations of the many who married in
reliance on this court's interpretation of the California Constitution in the Marriage Cases."
"Inalienable rights and equal protection of the laws are too important,
and all too fundamental to our system of constitutional government, to hinge
on the will of shifting majorities. If California's constitutional protections
are to mean anything of substance, mandate or prohibition should issue,
permanently enjoining respondents from enforcing, implementing, or otherwise
giving effect to Proposition 8." 4
The texts of additional Amicus Curiae briefs that oppose or support Prop. 8 can be read at the
California Supreme Court web site. 5
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
"Organizations and Individuals Submitting Amicus Briefs to the California
Supreme Court Supporting Petitions Challenging Proposition 8," National Center
for Lesbian Rights, 2009-JAN-16, at: http://www.nclrights.org/site/ (This is a PDF file).