ACLU to challenge Prop h8
The petition charges 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 by eliminating a fundamental right from just one group – lesbian and gay Californians. Proposition 8 also improperly attempts to prevent the courts from exercising their essential constitutional role of protecting the equal protection rights of minorities. According to the California Constitution, such radical changes to the organizing principles of state government cannot be made by simple majority vote through the initiative process, but instead must, at a minimum, go through the state legislature first.
"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. 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," said Jenny Pizer, a staff attorney with Lambda Legal. "That's too big a change in the principles of our constitution to be made just by a bare majority of voters."
"A major purpose of the constitution is to protect minorities from majorities. Because changing that principle is a fundamental change to the organizing principles of the constitution itself, only the legislature can initiate such revisions to the constitution," added Elizabeth Gill, a staff attorney with the ACLU of Northern California.
The groups filed the lawsuit today in the California Supreme Court on behalf of Equality California and 6 same-sex couples who did not marry before Tuesday's election but would like to be able to marry now.
The groups filed a writ petition in the California Supreme Court before the elections presenting similar arguments because they believed the initiative should not have appeared on the ballot, but the court dismissed that petition without addressing its merits. That earlier order is not precedent here.
"Historically, courts are reluctant to get involved in disputes if they can avoid doing so," said Shannon Minter, Legal Director of NCLR. "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."
More here: http://www.aclu.org/lgbt/relationships/37706prs20081105.html
"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. 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," said Jenny Pizer, a staff attorney with Lambda Legal. "That's too big a change in the principles of our constitution to be made just by a bare majority of voters."
"A major purpose of the constitution is to protect minorities from majorities. Because changing that principle is a fundamental change to the organizing principles of the constitution itself, only the legislature can initiate such revisions to the constitution," added Elizabeth Gill, a staff attorney with the ACLU of Northern California.
The groups filed the lawsuit today in the California Supreme Court on behalf of Equality California and 6 same-sex couples who did not marry before Tuesday's election but would like to be able to marry now.
The groups filed a writ petition in the California Supreme Court before the elections presenting similar arguments because they believed the initiative should not have appeared on the ballot, but the court dismissed that petition without addressing its merits. That earlier order is not precedent here.
"Historically, courts are reluctant to get involved in disputes if they can avoid doing so," said Shannon Minter, Legal Director of NCLR. "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."
More here: http://www.aclu.org/lgbt/relationships/37706prs20081105.html
13 Comments
CrosswordsWell hope they can succeed, but not holding my breath on it. Over turning a popular vote initiative can't be easy.
lucky760>> ^Crosswords:
side.
Well hope they can succeed, but not holding my breath on it. Over turning a popular vote initiative can't be easy.
That's true, but that's how we got here in the first place. An appellate court overturned the voters who made gay marriage illegal a few years ago, so the homophobes tried to do it again using different language and called it Prop 8.
The 14th Amendment is on our (opponents of Prop
FjnbkI can't believe they voted in Proposition 8. But the real WTF moment was in Alaska.
I think the Alaskans have lost the right to vote by reelecting a convicted felon. We need to give them back to Russia.
Crosswords^or feed them to the dwindling polar bear population.
I bet the Senate will refuse to seat Stevens, and then Palin will get to hand pick someone (Todd) to take his place.
blankfistI love me some ACLU. *quality
siftbotAwarding dystopianfuturetoday with one star point for this contribution to Sift Talk - declared quality by blankfist.
CaptainPlanet420It must be emotionally wrenching to be gay and in CA right now.
dystopianfuturetoday^Straight people all around the country are pissed too.
blankfistIt must be emotionally wrenching for trolls to have everyone of their comments downvoted. No? Then, just ignore them.
gwiz665I was gonna say it's gotta suck balls to be gay in CA right now, but it just sounds like a good thing.
This was a weird prop and it does seem like ACLU has a case and it should be overturned.
davidraine>> ^lucky760:
side.
The 14th Amendment is on our (opponents of Prop
I'm not sure it is -- If marriage is between a man and a woman, then prohibiting same-sex marriage would not be prohibited under the 14th Amendment. Since marriage is adjudicated by the state, I doubt federal law could be used to enforce a particular definition of marriage. I wish the courts had stepped in to decide this *before* the election.
For the record, I'm a straight male who is outraged and saddened by prop 8's passage. Ideally states would only issue certificates of civil union, which could be between any two (or more?) consenting adults. Marriage would be a religious issue that was not issued or recognized by the state.
Edit: After a bit more thought, I think a 14th Amendment challenge could work, but depends on showing that civil unions are essentially the same thing as marriage. At that point judicial precedent (Brown v. Board) would kick in.
davidraine>> ^Crosswords:
I bet the Senate will refuse to seat Stevens, and then Palin will get to hand pick someone (Todd) to take his place.
Thankfully, whomever Palin appoints could only make a mess of their Senate seat for about four months max. I checked the Alaska Constitution last night -- When an Alaskan U.S. Senator leaves his or her seat, the governor does appoint a temporary Senator, but also must hold a special election within 60-90 days of the elected Senator's departure.
I don't think there's anything in the AK Constitution preventing Palin from appointing herself, however.
schmawy>> ^CaptainPlanet420:
It must be emotionally wrenching to be gay and in CA right now.
CP420 shows some empathy, and gets slapped for it. Harsh.
It must be equally emotionally wrenching to be a Conservative Republican now. I feel for the folks who have to suffer through what we did the last eight years, thinking that the country has gone insane.
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