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California's gay marriage ban, Proposition 8, faces court battle

by Nick Cargo

California's constitutional gay marriage ban, Proposition 8, was poised to pass as of Wednesday afternoon. As votes were still being counted, however, the California Supreme Court had already been petitioned to hear a legal challenge to the initiative.

The American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights, filed the suit Wednesday on behalf of Equality California and six unmarried and possibly deprived same-sex couples. The plaintiffs urge the court to invalidate Proposition 8 on the grounds that the initiative process itself violated California's Constitution in aiming to prevent the judiciary from its duty to uphold equal protections for a minority: gays and lesbians. Any measure that changes the underlying principles of the Constitution, the plaintiffs charge, must first be approved by the state legislature before reaching a voter's ballot.

"A major purpose of the constitution is to protect minorities from majorities," said ACLU of Northern California staff attorney Elizabeth Gill.

"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," said Lambda Legal staff attorney Jennifer Pizer. "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."

"Only marriage between a man and a woman is valid and recognized in California," the text of the proposed amendment reads. It is identical to 2000's Proposition 22, voted into state law but ruled unconstitutional by the California Supreme Court in May.

Numerous public figures have spoken out against Proposition 8, including President-elect Barack Obama, Vice President-elect Joseph Biden, San Francisco Mayor Gavin Newsom, House Speaker Nancy Pelosi, Senator Dianne Feinstein and Governor Arnold Schwarzenegger.

"Historically, courts are reluctant to get involved in disputes if they can avoid doing so," added Shannon Minter, Legal Director of the National Center for Lesbian Rights. "It is not uncommon for the court to wait to see what happens at the polls before considering these legal arguments. However, now that Proposition 8 may pass, the courts will have to weigh in and we believe they will agree that Proposition 8 should never have been on the ballot in the first place."

Another lawsuit, on behalf of Robin Tyler and Diane Olson, will also be filed by attorney Gloria Allred. Tyler and Olson, joint plaintiffs in the combined suit in which the California Supreme Court ruled in favor of their right to marry, were the first same-sex couple to marry in Los Angeles County when the ruling took effect in June. The suit will contain a "new and controversial legal argument as to why Prop. 8 is unconstitutional."

San Francisco City Attorney Dennis Herrera has also announced intentions to legally challenge the initiative if it passes.

Despite a 400,000-vote advantage in favor of Proposition 8 as of Wednesday afternoon, opponents have refused to concede until all votes, including provisional and absentee ballots, have been tallied. "The fact is, depending on the turnout model, we are looking at millions of votes yet to be counted," National Center for Lesbian Rights executive director Kate Kendall said. "The race is too close to call. People's fundamental rights hang in the balance."

Over 18,000 same-sex marriages have been performed in California since June.







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Originally published on Wednesday November 5, 2008.


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