43 California Legislators Back Prop. 8 Being Overturned

More than 40 California legislators have signed a friend-of-the-court brief urging the state supreme court to overturn Proposition 8, which passed among voters last week to ban same-sex marriage.

The brief supports a petition, arguing that a simple majority of voters (in this case 52% on November 4) cannot be used to make a major change to the state constitution, according to the Sacramento Bee.

Since Election Day, three governmental units -- Los Angeles, San Francisco, and Santa Clara County -- and six couples have filed suit asking the court to overturn Proposition 8, according to The Recorder, a legal newspaper.

The state assembly and senate both approved measures to recognize same-sex marriage in 2005 and 2007, but Gov. Arnold Schwarzenegger vetoed the bills both times. In his 2007 veto message, Schwarzenegger said he preferred the courts to decide whether banning same-sex marriage was unconstitutional. He now says he supports movements to fight the ban.

Legal experts are divided on whether California's Supreme Court will overturn the voter-approved marriage ban on the grounds that Proposition 8 is really a constitutional revision, which would require approval by two-thirds of the Legislature and a majority of voters. David B. Cruz, a law professor at the University of Southern California, Los Angeles, believes the court will step in to protect minority rights. Letting Proposition 8 stand "would cut the courts out of the loop and not leave them to play their role, their traditional role of protecting the minority," Cruz said.

Proposition 8 attempts to change our fundamental law by means of an initiative amendment that, on a simple majority vote, threatens all of our fundamental constitutional rights.

Article XVIII of the California Constitution sets up different procedures for important “revisions” of the Constitution’s fundamental law, on the one hand, and relatively minor “amendments” on the other.

Changes that affect core aspects of our constitutional government are “revisions” that require passage either by two-thirds majorities in both houses of the legislature plus submission to the people, or a full-blown constitutional convention.An “amendment,” on the other hand, involves a relatively minor “addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.” Livermore v. Waite (1894) 102 Cal. 113, 118-19.

Nothing could be more fundamental to our constitutional government than equal protection of the law. A change to the Constitution that deprives a discreet segment of the population of the right to equal protection of the law in order to take away a further fundamental right (here, the right to marry) cannot be characterized a simple “addition or change within the lines of the original instrument.” It is a radical, fundamental abrogation of a core principle of our constitutional law.

It follows, then, that Proposition 8 is void. Because if Proposition 8 were upheld, setting a precedent that fundamental rights may indeed be deleted on the basis of a simple majority vote, then there is no principled limitation on what other rights might be taken away by initiative amendments.

Gay Prop 8 lawsuits challenged by conservative law group

A legal group with ties to Liberty University, the college founded by the late evangelist Jerry Falwell, is seeking standing before the California Supreme Court in a challenge to Proposition 8 - the amendment to the state constitution barring same-sex marriage.

In a brief filed Monday with the Supreme Court the Virginia-based Liberty Counsel says the challenges to Prop 8 have no basis in law.

A day after voters agreed to amend the constitution to ban same-sex marriage, three separate briefs were filed with the high court, arguing the proposition was illegal because it conflicted with existing portions of the constitution.

The American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights filed a writ petition before the California Supreme Court on Wednesday, a preliminary move to a suit. They were the lead groups that successfully argued the original marriage case before the court.

The second notice came from Dennis Herrera, the attorney for the City of San Francisco. The third was filed by Los Angeles attorney Gloria Allred on behalf of a couple married in that city.
The petitions charge that Proposition 8 is invalid because the initiative process was improperly used in an attempt to undo the constitution’s core commitment to equality for everyone. They also say that Prop 8 improperly attempts to prevent the courts from exercising their essential constitutional role of protecting the equal protection rights of minorities.

Liberty Counsel is representing the Campaign for California Families, which organized Prop 8.
In its brief, Liberty Counsel said that the challengers are wrong in their basic assumptions and asks the court for the right to argue to allow Prop 8 to stand when the high court hears the case.
“The proponents of same-sex marriage have thrown a ‘Hail Mary’ pass with no receivers down field,” said Mathew D. Staver, Founder of Liberty Counsel and Dean of Liberty University School of Law.

“The law suit seeking to block Proposition 8 is patently frivolous. The people have a right to amend their constitution,” Staver said in a statement.

“It is amazing how much effort has been put in this battle to keep the people from deciding the future of marriage. It makes no sense that four judges can re-write the historic definition of marriage and more than 5 million people cannot restore it to its common understanding as the union of one man and one woman.”

On Sunday, Gov. Arnold Schwarzenegger said he hoped the Supreme Court would declare Proposition 8 illegal.