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

Amici Curiae briefs opposed to Prop. 8

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Background (repeated):

"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 and individuals.

Most of the briefs filed with the California Supreme Court favored marital equality for persons of all sexual orientations -- heterosexual, bisexual and homosexual.

A minority of briefs opposed marital equality by favoring the constitutionality of Prop. 8.

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:

bullet 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, Section 7."

bullet 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:

bullet A 2/3 vote of both the House and Senate, or

bullet 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."

bullet Propositions can make minor amendments to the Constitution, but not a major revision.

bullet 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.

bullet 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."

bullet 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.

bullet 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.

bullet "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."

bullet "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."

bullet "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

References used:

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

  1. "Calif Prop. 8 lawsuits draw 'friends' near and far," Associated Press, 2009-JAN-15, at: http://www.mercurynews.com/
  2. "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).
  3. Kent Walker, "Supporting Equality," Google Blog, 2009-JAN-15, at: http://googleblog.blogspot.com/
  4. Eric A. Isaacson, et al., "Application to file brief of Amici Curiae California Council of Churches, et al.," 2009-JAN-13, at: http://www.courtinfo.ca.gov/
  5. "Proposition 8 Cases," Supreme Court, at: http://www.courtinfo.ca.gov/


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Copyright © 2009 to 2012 by Ontario Consultants on Religious Tolerance
Original posting: 2009-JAN-17
Latest update: 2012-JUL-24
Author: B.A. Robinson

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