California: No Exceptions to Equality

Amicus Brief Opposes Writing Discrimination Into California Constitution

Equality is a basic value underlying human rights standards and cannot be retracted at the whim of a simple majority, Human Rights Watch said in an amicus brief submitted to the California Supreme Court. Human Rights Watch called on the court to overturn Proposition 8, a referendum narrowly passed last November that withdrew the right to marry from lesbian and gay couples.

“The principle of equality is a bedrock foundation of respect for basic human rights,” said Scott Long, director of the lesbian, gay, bisexual, and transgender rights program at Human Rights Watch. “California should respect the values enshrined in its constitution and in international human rights law and continue to ensure that all Californians are entitled to equal protection of the laws.”

The amicus brief was filed by Human Rights Watch and its California North and California South Committees – networks of volunteer human rights advocates who support and further the organization’s work in California.

In May 2008, California’s Supreme Court ruled that the state’s constitution did not permit discrimination in the enjoyment of the right to marry. “Our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation,” Chief Justice Ronald M. George wrote for the majority. “An individual’s sexual orientation – like a person's race or gender – does not constitute a legitimate basis upon which to deny or withhold legal rights.”

More than 18,000 lesbian and gay couples married in California in the following months. However, opponents began a hard-fought campaign to overturn the decision at the ballot box. Proposition 8 passed by a narrow margin in November 2008. It ended equal access to marriage for same-sex couples. The proposition also puts those thousands of existing marriages at risk, and its supporters have petitioned the Supreme Court to declare them invalid.

California’s constitution requires that any measure attempting to revise the underlying principles of the constitution, rather than simply amend it, must first be approved by a two-thirds vote of the legislature before being submitted to the voters. The case now before the Supreme Court argues that Proposition 8 would change basic principles of equality, and is a revision rather than a simple amendment.

The Human Rights Watch brief, filed on January 15, cites the overriding importance of equal protection and nondiscrimination in international human rights law. It points to the example of seven countries that have understood the principle of equality to require equal access to marriage for same-sex couples. Those countries are the Netherlands, Belgium, Spain, Canada, South Africa, Nepal, and Norway.

“What happens in California will have resonance far beyond the state’s borders,” said Sid Sheinberg, co-chair of Human Rights Watch’s California Committee South and vice-chair of the organization’s international board of directors. “It is important for the court to look to international examples, and for California to continue to show leadership in protecting all people’s rights to equal dignity and respect.”